Filed 1/30/24 P. v. Isaac CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ZOELEE ISAAC,

Defendant and Appellant.

 B326883

 (Los Angeles County

 Super. Ct. No. BA099542)

APPEAL from an order of the Superior Court of 

Los Angeles County, Stephen A. Marcus, Judge. Affirmed.

Brad Kaiserman, 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, Kenneth C. Byrne and Allison H. Chung, 

Deputy Attorneys General, for Plaintiff and Respondent.

______________________________
2

This is defendant and appellant Zoelee Isaac’s second

appeal from a postjudgment order denying his petition for 

resentencing under Penal Code1 section 1172.6.2 

In the first of these postjudgment appeals, we affirmed the 

trial court’s order denying defendant’s first resentencing petition 

following an evidentiary hearing. (People v. Isaac (Aug. 12, 

2021), B305378 [nonpub. opn.] (Isaac), rev. denied Oct. 20, 2021.) 

Defendant subsequently filed a second resentencing petition, 

which the trial court summarily denied. Defendant now appeals 

from that ruling. Finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. The 1996 Conviction and Direct Appeal

A. The Murder and Robberies

“On the morning of July 20, 1994, [Sonja] Key, [Timothy 

Thomas] Williams, [defendant], and one other man entered Home 

Bank.[3] They were all armed. Key was wearing a wig. Williams, 

dressed in what appeared to be a brown United Parcel Service 

uniform, approached the bank guard Juan Corona. An argument 

and struggle for Corona’s gun ensued. Key walked over to the 

two men. She began to struggle with Corona. She said, ‘Get him 

off me or I’ll pop him.’ Key shot Corona in the neck, and he 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 When defendant filed his petition, the relevant 

resentencing statute was numbered section 1170.95. Effective 

June 30, 2022, section 1170.95 was renumbered section 1172.6, 

with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity, 

we refer to the section by its new numbering.

3 At the time, defendant was 22 years old.
3

subsequently bled to death. Key ordered everyone in the bank to 

the floor. [Defendant] and the fourth robber brandished their 

weapons and demanded money. They demanded that teller 

Jumpee Sue Martinez and corporate officer Roy Foster give them 

money from the teller drawers. They did so. The robbers took 

$2,869 in all from unlocked teller stations and then fled in a 

stolen hot-wired van. They abandoned the van and were driven 

off in a Pontiac. The van contained wigs and a bucket of soapy 

water.” (People v. Key (Aug. 5, 1998, B105415) [nonpub. opn.] 

(Key) [counts 1–3].)

Six days later, “[Francis D.] Flowers, [defendant], Key and 

Tianay Robinson, . . . all armed, entered the Gilmore Commercial 

and Savings Bank. All four were wearing wigs. As an elderly 

customer, Doris Ingber, was leaving the bank, Robinson threw 

her down and pushed her head to the floor. Then the four 

robbers announced that it was a holdup and demanded to know 

where the vault was. [Defendant] put a gun to the head of 

security guard Raymond Gomez, then threw him to the floor. 

Robinson shot Gomez as he lay on the floor. Flowers threatened 

the tellers at gunpoint and filled a grocery bag with $7,580 from 

the tellers’ drawers. Flowers demanded that teller Esmirna 

Lozano give him the money from her teller drawer. She did so. 

Flowers later slapped Lozano for saying she had no keys to teller 

Patsy Beene’s drawer. Flowers and [defendant] pointed their 

guns at Patsy Beene, who at first refused to open her teller 

drawer. She later did so, and Flowers took the cash in the 

drawer. Flowers pointed his gun at Moses Aguilar, a teller, and 

demanded that he give him money. After Aguilar turned over his 

cash, Flowers ordered Aguilar to lie down on the floor.
4

“Either Flowers or [defendant] kicked open the door to the 

safe deposit area, where bookkeeper Ofelia Hovian was working. 

The robber held a gun to her head and he and Key demanded 

that Hovian show them where the money was. Hovian went 

under a desk, and the man kicked her in the side. Hovian 

showed the intruders where the safe deposit boxes were. The 

robbers fled in a hot-wired stolen blue Oldsmobile, which they 

later abandoned a few miles away. The Oldsmobile contained 

three white wet trash bags, one of which contained a soaked $1 

bill.” (Key, supra, B105415 [counts 4–10].)

One week after the second robbery, “Williams, Robinson, 

and [defendant] were apprehended in a stolen hot-wired van 

within 200 feet of a Wells Fargo Bank. [William] Blackwell, 

Flowers, and Key were apprehended in a red Pontiac. Police, 

who had been watching defendants’ activities, concluded that 

they were about to rob the bank. Key, Flowers, and Robinson 

had been wearing wigs when first seen, although they removed 

them before exiting the vehicles. Robinson, [defendant], Key[,] 

and Flowers were all wearing heavy makeup. The police found 

loaded guns, a laundry basket with plastic trash bag liners filled 

with water, wigs, a pillowcase, and a police scanner and manual 

in the vehicles. They also found incriminating evidence in Key’s 

apartment, from which the five had exited just before driving to 

the Wells Fargo Bank, and in [defendant’s] residence.” (Key, 

supra, B105415 [count 13].)

B. The 1996 Conviction and Appeal

In 1996, a jury convicted defendant of first degree murder 

(§ 187, subd. (a); count 1) with a robbery-murder special 

circumstance finding (§ 190.2, subd. (a)(17)), robbery (§ 211; 

counts 2, 4 & 5), assault with a firearm (§ 245, subd. (a)(2); 
5

counts 3, 7–10), possession of a firearm by a felon (§ 12022, subd. 

(a)(1); count 12), and conspiracy to commit robbery (§ 182, subd. 

(a)(1); count 13).

As to counts 1 through 3, the jury found principal firearm 

use allegations to be true. (§ 12022, subd. (a)(1).) It also found 

both principal firearm and personal firearm use allegations to be 

true as to counts 4, 5, and 7 through 10. (§ 12022.5, subd. (a).) 

The trial court had earlier “granted [defendant’s] motion[] to 

dismiss personal use allegations [(§ 12022.5, subd. (a))] in counts 

1 and 2.” (Key, supra, B105415.)

The trial court sentenced defendant to 22 years eight 

months in state prison, plus life without the possibility of parole.

On direct appeal, we modified defendant’s sentence to 

strike an enhancement attached to count 3 and affirmed the 

judgment as modified. (Key, supra, B105415.)

II. The First Resentencing Petition and Subsequent 

Appeal

On January 2, 2019, defendant filed a petition for 

resentencing. (Isaac, supra, B305378.) The trial court appointed 

counsel. (Ibid.) After briefing from both parties, the trial court 

issued an order to show cause and set the matter for an 

evidentiary hearing pursuant to section 1172.6, subdivision (d). 

(Isaac, supra, B305378.) “The parties submitted on their briefs 

and whatever materials had been submitted by the parties to the 

trial court.” (Ibid.)

In February 2020, “[a]fter entertaining oral argument, the 

trial court denied defendant’s section [1172.6] petition.” (Isaac, 

supra, B305378.) The trial court recited a long list of evidence 

supporting its conclusion that “defendant was ‘a major 

participant’ who acted with ‘reckless indifference of life[]’” and “a 
6

direct aider and abettor who acted with intent to kill.” (Isaac, 

supra, B305378.) It noted that “‘this was an armed takedown 

robbery of a bank’ [with] . . . [‘]no effort to minimize violence. 

They robbed it in the middle of the day. They had to know there 

was an armed security guard. . . . And, defendant had to have 

been aware ‘of the dangers of robbing a bank during working 

hours with an armed guard.’ [¶] Furthermore, defendant ‘was 

there, and he was present, and he was not outside as the getaway 

driver. . . . He was there in the bank. He was part of this wellorchestrated and planned robbery.’ [¶] The trial court also 

pointed to the evidence that the robbery was well planned: the 

robbers stole a car in the morning and then, after they left the 

bank, ‘within a short distance they switch[ed] cars.’ ‘Not only do 

they do all those things, but they wear disguises. . . . [T]hey have 

buckets of water in the van. That’s to deal with the dye that 

might be on the packets of money that they steal. They have 

wigs on. There are just all kinds of things that show that this 

[was] highly sophisticated.’” (Ibid.)

On appeal, we affirmed, holding that “the trial court’s 

findings that defendant acted either as a direct aider and abettor 

with intent or a major participant with reckless indifference to 

human life are supported by substantial evidence.” (Isaac, supra, 

B305378.) Specifically, we agreed that defendant was an aider 

and abettor based upon “[r]easonable inferences . . . that Key 

intended to not just shoot, but kill Corona, and that defendant 

knew that she intended to do so. Therefore, the trial court’s 

finding that defendant was ineligible for resentencing because he 

had the intent to kill was proper.” (Isaac, supra, B305378.)
7

III. The Second Resentencing Petition

In July 2022, defendant filed a second resentencing petition 

under section 1172.6. The trial court again appointed counsel.

The People opposed, arguing that the second petition 

should be denied because it “[wa]s duplicative” of a petition that 

the trial court “already denied . . . in 2020 and the Court of 

Appeal affirmed[.]”

Defendant filed a response, contending that the enactment 

of Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775) 

was a “significant change in the law” entitling him to a new 

evidentiary hearing under section 1172.6. Defendant argued that 

because the record is “extremely unclear” on the question of

“what SPECIFIC evidence the [c]ourt relied upon and what 

standard the court used in denying defendant’s [first] petition[,]”

“[t]here is no way to ascertain if the court relied upon evidence 

that would no longer be permissible under the changes in 1172.6 

. . . procedures as they have been amended through Senate Bill 

775[.]”

In December 2022, the matter proceeded to a hearing. 

After hearing argument from both sides, the trial court said that

it had “painstakingly [gone] through the facts of this case” when 

evaluating defendant’s first resentencing petition and “made a 

ruling in which I indicated that . . . defendant . . . was a major 

participant who acted with reckless indifference to life. . . . [¶] 

. . . [A]nd I further stated that there may have been some 

evidence to support that he aided and abetted the crime with 

specific intent to kill. [¶] [I]n any case, I just don’t see a reason 

to give him a second chance. He had his opportunity. He 

appealed my decision. He lost that appeal.” The trial court thus
8

summarily denied defendant’s second resentencing petition 

“based on . . . ‘law of the case[.]’”

Defendant timely appealed.

DISCUSSION

I. Background Legal Principles

“Section 1172.6 provides a mechanism whereby people ‘who 

believe they were convicted of murder for an act that no longer 

qualifies as murder following the crime’s redefinition in 2019[ ] 

may seek vacatur of their murder conviction and resentencing by 

filing a petition in the trial court.’ [Citation.]” (People v. Arnold 

(2023) 93 Cal.App.5th 376, 382 (Arnold).)

As is relevant here, in order to obtain resentencing relief, 

the petitioner must allege that (1) an information had been filed 

against him allowing the prosecution to proceed under a theory of 

murder under the felony murder rule, the natural and probable 

consequences doctrine, or 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)(1)); (2) the petitioner was 

convicted of murder (§ 1172.6, subd. (a)(2)); and (3) he could not 

now be convicted of murder as presently defined. (§ 1172.6, subd. 

(a)(3)).

If the trial court determines that the petitioner has made a 

prima facie showing of entitlement to relief, it must issue an 

order to show cause and hold an evidentiary hearing. (§ 1172.6, 

subd. (c).) At the evidentiary hearing, the prosecution bears the 

burden of proving, “beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) 

If the prosecution cannot meet its burden, the petitioner is 

entitled to vacatur of the murder conviction and resentencing as 

set forth in section 1172.6, subdivision (e).
9

Effective January 1, 2022, section 1172.6 was amended by 

Senate Bill 775. Among other things, these amendments provide 

that, at the evidentiary hearing stage, the trial court “may 

consider evidence previously admitted at any prior hearing[]” 

except for “hearsay evidence that was admitted in a preliminary 

hearing pursuant to subdivision (b) of [s]ection 872[,]” which

“shall be excluded from the hearing as hearsay, unless the 

evidence is admissible pursuant to another exception to the 

hearsay rule.” (§ 1172.6, subd. (d)(3).) 

The statute as amended also specifies that the trial court 

may “‘consider the procedural history of the case recited in any 

prior appellate opinion.’ ‘The specificity of this provision 

‘indicates the Legislature has decided trial judges should not rely 

on the factual summaries contained in prior appellate decisions 

when a section [1172.6] petition reaches the stage of a fullfledged evidentiary hearing.’” (Arnold, supra ̧ 93 Cal.App.5th at 

p. 392.)

II. Standard of Review

When, as here, the trial court denies a section 1172.6 

petition at the prima facie stage based on a question of law, our 

review is de novo. (People v. Drayton (2020) 47 Cal.App.5th 965, 

981, overruled in part on another ground in People v. Lewis

(2021) 11 Cal.5th 952, 963.)
10

III. Analysis

We conclude that the trial court properly applied the law of 

the case doctrine to summarily deny defendant’s resentencing 

petition.4

A. Additional Relevant Law

The law of the case doctrine provides “‘that when, in 

deciding an appeal, an appellate court “states in its opinion a 

principle or rule of law necessary to the decision, that principle or 

rule becomes the law of the case and must be adhered to 

throughout its subsequent progress, both in the lower court and 

upon subsequent appeal[s.] [Citation.]’” (People v. Bryant, Smith 

and Wheeler (2014) 60 Cal.4th 335, 374, fn. 6.) “As its name 

suggests, the doctrine applies only to an appellate court’s decision 

on a question of law[.]” (People v. Barragan (2004) 32 Cal.4th 

236, 246 (Barragan).)

“[H]owever, ‘the doctrine will not be adhered to where its 

application will result in an unjust decision, e.g., where . . . the 

controlling rules of law have been altered or clarified by a 

decision intervening between the first and second appellate 

determinations.’ [Citation.]” (People v. Lee (2023) 95 Cal.App.5th 

1164, 1186 (Lee).)

4 At oral argument, defendant repeatedly argued that 

collateral estoppel does not bar his second resentencing petition; 

in his reply brief, defendant conflates the concepts of collateral 

estoppel and law of the case. Assuming without deciding that he 

is correct as to collateral estoppel, his argument does not alter 

our analysis under the distinct law of the case doctrine.
11

B. Application

The People argue that our prior opinion in Isaac, supra, 

B305378 establishes as the law of the case that sufficient 

evidence supports the conclusion that defendant is ineligible for 

resentencing relief under section 1172.6.

5 We agree. (Barragan, 

supra, 32 Cal.4th at p. 246 [“[B]ecause an appellate court’s 

determination ‘that the evidence is []sufficient to justify a finding 

or a judgment is necessarily a decision upon a question of law[]’ 

. . . [s]uch a determination ‘establishe[s] as the law of the case 

that all the evidence adduced at the previous [proceeding] was 

[]sufficient as a matter of law to establish’ the finding or 

judgment”].)

However, defendant contends that intervening changes in

law provide new grounds for him to establish his eligibility for 

resentencing relief. To ensure that our application of the law of 

the case doctrine does not yield an unjust result, consistent with 

People v. Farfan (2021) 71 Cal.App.5th 942, 950, we must 

determine whether our decision in Isaac has been “‘altered or 

clarified’” by the new legal authorities cited by defendant. (Lee, 

supra, 95 Cal.App.5th at p. 1186.) In so doing, we ask whether 

these new authorities provide a basis for his second resentencing 

petition to go forward, not (as defendant often argues) whether 

the trial court erred at the evidentiary hearing on his first 

resentencing petition.

5 In his briefs, defendant attacks the legitimacy of our 

decision in Isaac, suggesting that we improperly conducted a 

“sufficiency of the evidence analysis” instead of a “prejudice 

analysis[.]” But that opinion (and the rulings therein) have long 

since become final; the California Supreme Court denied 

defendant’s petition for review in October 2021. 
12

Defendant identifies three relevant changes in law. First, 

he cites Senate Bill 775, which clarified that one narrow category 

of evidence—“hearsay evidence . . . admitted in a preliminary 

hearing pursuant to subdivision (b) of [s]ection 872”—is 

inadmissible in a section 1172.6 evidentiary hearing.

6 But, both 

before the trial court and on appeal, defendant identifies no 

evidence (material or otherwise) in the record of conviction that 

could not now be admitted or considered under section 1172.6 as 

amended by Senate Bill 775.

7 (See People v. Davis (1996) 

50 Cal.App.4th 168, 172 [“The very settled rule of appellate 

review is a trial court’s order/judgment is presumed to be correct, 

error is never presumed, and the appealing party must 

affirmatively demonstrate error on the face of the record”].)

6 Defendant also cites the amended portion of section 1172.6 

which provides that the trial court “may consider evidence 

previously admitted at any prior hearing or trial that is 

admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed.” (§ 1172.6, 

subd. (d)(3).) He does not argue that this provision affects any 

evidence in the record of conviction, nor does he explain how it 

could change our prior decision in Isaac.

7 Similarly, we reject defendant’s claim that the other major 

amendment enacted by Senate Bill 775 (that the trial court 

cannot rely on factual summaries from prior appellate opinions)

impacts our ability to rely on the law of the case as set forth in 

Isaac. Defendant does not argue that removing the factual 

summary from Isaac would alter our prior conclusion that 

sufficient evidence supports the trial court’s order that defendant

is ineligible for resentencing relief.
13

Second, defendant directs our attention to a new line of 

cases clarifying the preclusive effects of prior jury findings at a 

section 1172.6 evidentiary hearing.

8 (See, e.g., People v. Cooper 

(2022) 77 Cal.App.5th 393, 398 [“[A] trial court cannot deny relief 

in a section [1172.6] proceeding based on findings that are 

inconsistent with a previous acquittal when no evidence other 

than that introduced at trial is presented”]; Arnold, supra, 

93 Cal.App.5th at p. 383 [trial court could not find that defendant 

was the actual killer in contravention of the jury’s prior finding 

that he did not personally use the murder weapon].)

Theoretically, this line of cases could impact our decision in 

Isaac. If evidence in the record of conviction directly contravened 

a prior finding made at defendant’s 1996 trial, cases such as 

Arnold would preclude the trial court from relying on that 

evidence in any hearings held on subsequent petitions. (See 

Arnold, supra, 93 Cal.App.5th at p. 391.) And as discussed 

above, a new law that disqualifies material pieces of evidence in

the record of conviction could alter our prior ruling about that

record’s sufficiency. 

But again, defendant does not make such claims here. He

argues that the trial court’s dismissal of the personal firearm use 

allegation with respect to the murder charge functions as an 

acquittal on the finding that defendant personally fired the 

8 By not raising any new laws aside from Senate Bill 775 

before the trial court, defendant arguably forfeited his arguments 

as to other authorities. However, because defendant asserts that 

his counsel provided ineffective assistance of counsel by failing to 

invoke these other authorities, we will address his arguments on 

appeal. (See People v. Crittenden (1994) 9 Cal.4th 83, 146 [court 

may exercise discretion to consider forfeited claims to forestall 

ineffective assistance of counsel arguments].)
14

murder weapon. Even if we agreed with that contention, a prior 

finding that defendant did not personally use a firearm does not 

preclude the trial court from finding that he is ineligible for 

resentencing relief as a direct aider and abettor. (Contra, Arnold, 

supra, 93 Cal.App.5th at pp. 390–391 [reversing the denial of a 

section 1172.6 petition because the trial court’s finding that 

defendant was the actual killer contradicted a prior jury finding 

that he did not personally use the murder weapon].) Indeed, we 

expressly noted in Isaac that the record of conviction contains 

sufficient evidence to support a finding that defendant directly 

aided and abetted first-degree murder regardless of “whether [he]

himself was armed.” (Isaac, supra, B305378.) 

Third, defendant points to a new line of cases emphasizing

the need to consider a defendant’s youth when assessing his 

capacity to be recklessly indifferent within the meaning of section 

1172.6. (See, e.g., People v. Jones (2022) 86 Cal.App.5th 1076, 

1093 [“[I]t is best for the trial court to have a meaningful 

opportunity to consider [a defendant’s] youth as part of the 

totality of the circumstances germane to determining whether he 

was a major participant who acted with reckless indifference to 

human life”].)

But, Isaac affirmed that defendant is ineligible for 

resentencing relief as a direct aider and abettor, and we have 

rejected all of defendant’s arguments targeting that finding. 

Therefore, it is irrelevant whether defendant could now be found 

ineligible on the alternate ground that he was a major 

participant who acted with reckless indifference to human life.9 

9 It follows that we do not reach defendant’s claims that he 

received ineffective assistance of counsel in connection with this 

argument.
15

DISPOSITION

The trial court’s order denying defendant’s second section 

1172.6 resentencing petition is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT