1

Filed 1/25/22 P. v. Cree CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID KENNETH CREE,

Defendant and Appellant.

C093059

(Super. Ct. No. CR20006770 )

A jury convicted defendant David Kenneth Cree of second degree murder and 

attempted voluntary manslaughter. This court affirmed the second degree murder 

conviction in 2005. In January 2019, defendant filed a petition for resentencing under 

Penal Code section 1170.95.1 The trial court found that defendant was ineligible for 

relief and denied the petition. Defendant appeals, arguing that the trial court erred in 

denying his section 1170.95 petition.

1

 Undesignated statutory references are to the Penal Code.
2

For the reasons set forth below, we conclude the trial court did not err in denying 

defendant’s petition and affirm.

BACKGROUND

A. Prior Conviction

The relevant facts of this case are detailed in our opinion People v. Lamkin

(Sept. 13, 2005, C045080) [nonpub. opn.] (Lamkin). On the evening of October 8, 2000, 

Gregory Rowan and Jimmie Richardson, were asked a question by two men in a car and 

when they approached the car, the passenger shot the men with a sawed-off shotgun; 

Rowan survived but Richardson died. (Id. at p. 3.) The night of the shooting, Lamkin 

and defendant told a friend they had been target shooting and this friend had seen 

defendant sawing off the back end of a shotgun. (Ibid.) The friend also said the two 

appeared to psyche themselves up for something “they needed to do.” (Ibid.) Police later 

found expended shotgun shells at Lamkin’s residence matching the expended shells at the 

scene of the crime. (Id. at p. 4.)

Defendant testified at trial he did not know Lamkin was going to shoot anyone and 

Lamkin’s testimony supported this view. (Lamkin, supra, C045080 at pp. 4, 24-27.) 

Lamkin testified he was drunk in the car and was startled awake by what he thought was 

a person with a weapon, so he fired the shotgun. (Id. at pp. 4, 26-27.)

The jury found defendant and Lamkin guilty of second degree murder and 

attempted voluntary manslaughter and found true Lamkin was the actual shooter. 

(Lamkin, supra, C045080 at p. 2.) For second degree murder, the jury was instructed on 

unpremeditated and conscious disregard (implied malice) second degree murder. (Id. at 

p. 9.) Defendant was sentenced to 15 years to life for second degree murder and a 

consecutive determinate term of five years six months for attempted voluntary 

manslaughter. (Id. at p. 2.)
3

Defendant appealed and we reversed his conviction for attempted voluntary 

manslaughter but affirmed his second degree murder conviction. (Lamkin, supra, 

C045080 at p. 30.)

B. Section 1170.95 Petition

On January 11, 2019, defendant filed a petition for resentencing under section 

1170.95. In the petition, defendant checked boxes that he was convicted of second 

degree murder “pursuant to the felony murder rule or the natural and probable 

consequences doctrine” and he could not be convicted of murder “because of changes 

made to . . . §§ 188 and 189.”

While preparing the response to defendant’s petition, the prosecutor found a 

natural probable consequence instruction in the packet of instructions given to the jury 

that had not been read orally to the jury. The instruction appears to originally have been 

refused or withdrawn but then the boxes indicating they were given as requested by the 

People were checked. In relevant part, the instruction provided:

“One who aids and abets [another] in the commission of a crime [or crimes] is not 

only guilty of [that crime] [those crimes], but is also guilty of any other crime committed 

by a principal which is a natural and probable consequence of the crime[s] originally 

aided and abetted.

In order to find the defendant guilty of the crime[s] of murder, [as charged in 

Count one,]2 you must be satisfied beyond a reasonable doubt that:

1. The crime of murder [was] committed;

2. That the defendant aided and abetted [that] crime;

3. That a co-principal in that crime committed the crime of murder; and

2

 Defendant was charged in count one with first degree murder. [based on the allegation 

the murder “was intentional and perpetrated by means of discharging a firearm from a 

motor vehicle.” (§ 189, subd. (a).)]; [count 1 verdict form])
4

4. The crime[s] of voluntary manslaughter [was] [were] a natural and probable 

consequence of the commission of the crime[s] of _______.”

Defendant’s counsel filed a brief with the trial court relying in part on this 

instruction.

On September 16, 2020, the trial court denied defendant’s petition. The trial court 

found whether defendant made a prima facie showing turned on the instruction and 

whether a “reasonable inference can be made that the jury could have followed it in 

convicting” defendant. The trial court found such inference could not reasonably be 

made given the instruction is “incomplete, nebulous, and appears to have been added to 

the jury instructions at the last minute” and defendant’s argument that the jury could have 

relied on this instruction in convicting him for second degree murder was “pure 

conjecture.” “Thus, even under a prima facie standard of review, [defendant] has not met 

his burden that he is eligible for resentencing under the newly enacted provisions of Penal 

Code section 1170.95.”

DISCUSSION

Defendant makes two related arguments. He first contends the court erred in 

reviewing the record of conviction at the prima facie stage, imploring us to disagree with 

the cases deciding otherwise. But even considering the record of conviction, defendant 

also contends he has made a prima facie showing for relief because the jury was provided 

with a natural and probable consequence instruction. We disagree.

I

Scope of Prima Facie Review

Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted to “amend the felony 

murder rule and the natural and probable consequences doctrine, . . . 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.” (Stats. 2018, ch. 1015, § 1(f).) Senate Bill 
5

No. 1437 achieves these goals by amending section 188 to require that a principal act 

with express or implied malice and by amending section 189 to state that a person can 

only be liable for felony murder if (1) the “person was the actual killer”; (2) the person 

was an aider or abettor in the commission of murder in the first degree; or (3) the “person 

was a major participant in the underlying felony and acted with reckless indifference to 

human life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)

Senate Bill No. 1437 also added section 1170.95 to provide the resentencing 

petition process. After a defendant submits a petition and the court does an initial review 

for missing information, subdivision (c) of section 1170.95 provides, in part, “The court 

shall review the petition and determine if the petitioner has made a prima facie showing 

that the petitioner falls within the provisions of this section. If the petitioner has 

requested counsel, the court shall appoint counsel to represent the petitioner.” 

(§ 1170.95, subd. (c).)

Our Supreme Court recently concluded that, in performing this preliminary 

screening function, courts are not limited to the allegations of the petition; rather, “the 

parties can, and should, use the record of conviction to aid the trial court in reliably 

assessing whether a petitioner has made a prima facie case for relief under subdivision 

(c).” (People v. Lewis (2021) 11 Cal.5th 952, 972. Thus, if the record of conviction 

establishes the petition lacks merit, the trial court may deny the petition without 

conducting further proceedings. (Id. at p. 971 [“The record of conviction will necessarily 

inform the trial court’s prima facie inquiry under section 1170.95, allowing the court to 

distinguish petitions with potential merit from those that are clearly meritless”].)

We therefore reject defendant’s first contention of error. The trial court here was 

permitted to review all readily ascertainable information in determining whether 

defendant is ineligible for relief, including the jury instructions from defendant’s trial. 

(See, e.g., People v. Gomez (2020) 52 Cal.App.5th 1, 15, review granted Oct. 14, 2020, 

S264033 [“the jury necessarily found that [the defendant] either participated in the 
6

alleged robbery and kidnapping with the intent to kill [the victim], or that she was a 

major participant in those crimes who acted with reckless indifference to [the victim’s] 

life”].)

III

Prima Facie Analysis

When reviewing the record of conviction during the prima facie stage, a court 

“should not evaluate the credibility of the petition’s assertions, but it need not credit 

factual assertions that are untrue as a matter of law.” (People v. Drayton (2020) 

47 Cal.App.5th 965, 980.) This review “is limited to readily ascertainable facts from the 

record (such as the crime of conviction), rather than factfinding involving the weighing of 

evidence or the exercise of discretion (such as determining whether the petitioner showed 

reckless indifference to human life in the commission of the crime).” (Ibid.; People v. 

Lewis, supra, 11 Cal.5th at p. 971 [citing Drayton with approval].) The trial court should 

issue an order to show cause “[i]f, accepting the facts asserted in the petition as true, the 

petitioner would be entitled to relief because he or she has met the requirements of 

section 1170.95(a).” (Drayton, at p. 980.; People v. Duchine (2021) 60 Cal.App.5th 798, 

815 [“true factfinding should be reserved and exercised only after an order to show cause 

is issued and the parties are permitted to supplement the record with new evidence, 

including, if requested, through an evidentiary hearing”].)

The natural and probable consequence instruction cannot establish defendant’s 

potential eligibility.3 The instruction does not state or even elude to second degree 

murder, the killing charge the jury found defendant guilty of. It is unclear which charge 

3

 In our opinion in defendant’s direct appeal, in analyzing defendant’s attempted 

voluntary manslaughter conviction, we noted “the trial court did not instruct on the 

natural and probable consequences doctrine.” (Lamkin, supra, C045080 at p. 9.) This 

appears to not be correct, but in any case, it was dicta.
7

the instruction applies to as it refers to finding defendant guilty of murder “as charged in 

Count one,” which was first degree murder. But the instruction then lists the crime of 

“voluntary manslaughter” being a natural and probable consequence of another unlisted 

crime. So, first degree murder was listed as both the target and non-target offense, and 

voluntary manslaughter was also listed as the non-target offense. This might be 

interpreted as permitting finding defendant guilty of voluntary manslaughter or first 

degree murder under the natural and probable consequences doctrine, but in both cases it 

would require the jury to fill in unknown information and overcome inconsistencies. In 

any case, there is no language at all permitting the jury to have applied this incomplete 

instruction to second degree murder. The only reasonable conclusion is the jury found 

defendant guilty of second degree murder based on the second degree murder instructions 

given—either unpremeditated murder or conscious disregard murder.

It would take several speculative leaps to accept defendant’s argument the jury 

could have relied on this instruction in finding him guilty of second degree murder. The 

jury would have needed to: (1) understand the appropriate application of the natural and 

probable consequences doctrine from the incomplete instruction, (2) apply it to second 

degree murder against the language of the instruction, and (3) ignore the proper 

instructions given for second degree murder that did not rely on a natural and probable 

consequence theory. (Lamkin, supra, C045080 at p. 9.) We agree with the trial court that 

this relies on “pure conjecture.” Further, defendant would have us violate a core 

principle of review that “[w]e must presume the jury followed the instructions.

[Citations.]” (People v. Luo (2017) 16 Cal.App.5th 663, 675.) Though this instruction 

was ambiguous, it unquestionably could not have permitted the jury to find defendant 

guilty of second degree murder under the natural and probable consequences doctrine.

Finding otherwise would also be a fruitless exercise. If this instruction could 

satisfy defendant’s prima facie burden, the trial court would be obligated to issue an order 

to show cause and hold an evidentiary hearing. But the only evidence defendant could 
8

theoretically present to support his claim would be evidence showing the jurors 

collectively agreed to disobey the jury instructions and essentially develop their own 

theory of second degree murder separate from the theories required by the jury 

instructions. The unlikely existence and admissibility of such evidence further 

underscores defendant’s ineligibility at the prima facie stage. (See, e.g., Evid. Code, 

§ 1150, subd. (a) [“No evidence is admissible to show the effect of such statement, 

conduct, condition, or event upon a juror either in influencing him to assent to or dissent 

from the verdict or concerning the mental processes by which it was determined”]; In re 

Stankewitz (1985) 40 Cal.3d 391, 403 fn. 5 [where one juror repeatedly stated his 

incorrect understanding of law based on his own outside experience, the court observed 

“the kind of juror misconduct involved in this case seems to occur only on rare 

occasions”].)4 Again, “[j]urors are presumed to understand and follow the court’s 

instructions. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 662.)

4

 And though defendant is not required to present such evidence at the prima facie stage, 

it is telling he has not included or referenced the existence of any evidence indicating jury 

misconduct to the trial court or on this appeal.
9

DISPOSITION

The judgment (order) denying the petition is affirmed.

 \s\ , 

BLEASE, Acting P. J.

We concur:

 \s\ ,

ROBIE, J.

 \s\ ,

RENNER, J.