Filed 10/1/24 P. v. Taylor CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRY TAYLOR,

Defendant and Appellant.

 B329977

 (Los Angeles County

 Super. Ct. No. LA044074)

APPEAL from an order of the Superior Court of Los Angeles County, 

Thomas Rubinson, Judge. Affirmed.

Aurora Elizabeth Bewicke, 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, Supervising Deputy Attorney General, and Melanie Dorian, Deputy 

Attorney General, for Plaintiff and Respondent.
2

INTRODUCTION

Appellant Terry Taylor (Taylor) was convicted of attempted murder 

and mayhem in 2005. In 2022, Taylor petitioned for resentencing under 

former Penal Code section 1170.95,1 which has since been renumbered as 

section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) The trial 

court denied his petition without an evidentiary hearing. We conclude that 

Taylor is ineligible for relief under section 1172.6, and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We draw some of the facts here from the opinion on Taylor’s direct 

appeal from his conviction, issued by a prior panel of this court in 2007. 

(People v. Young (March 21, 2007, B188300) [nonpub. opn.].) 

In September 2003, Taylor and codefendant Jeffery Young (Young)

were riding in a vehicle driven by Kristopher Govea (Govea). The vehicle 

pulled up next to a bus stop and a crowd of high school students. Some words 

were exchanged, and one of the passengers fired at least three times into the 

crowd. At trial, the prosecution argued that Young was the shooter, and 

Taylor was guilty as an aider and abettor. 

A jury convicted both Taylor and Young of three counts of willful, 

deliberate, and premeditated attempted murder (Pen. Code, §§ 664/187, subd. 

(a)), as well as three counts of mayhem (§ 203).

2 The trial court sentenced 

Taylor to three consecutive sentences of 25 years to life on the attempted 

murder counts and stayed sentencing on the mayhem counts. This court 

1 All future statutory references are to the Penal Code, unless otherwise 

stated.

2 The jury also found true a series of nine enhancements.
3

affirmed the judgment with minor modifications.

3 (People v. Young, supra,

B188300.)

In 2022, Taylor petitioned the trial court for relief under former section 

1170.95.4 He argued that error in the instructions could have allowed the 

jury to find him guilty without the legally required intent. In 2023, the trial 

court held the required hearing under section 1172.6, subdivision (c), and 

determined that Taylor had not made a prima facie case for relief. The court 

ruled that the jury had been instructed on a direct aiding and abetting theory 

and instructed that an attempted murder conviction required a finding of

intent to kill the victim. Therefore, Taylor was not eligible for resentencing. 

Taylor timely appealed. 

DISCUSSION

I. Governing Law

In 2019, the legislature updated the murder statutes to limit vicarious 

liability for that offense. (Stats. 2018, ch. 1015, §§ 1-3; see People v. Lewis

(2021) 11 Cal.5th 952, 959 (Lewis).) The legislature also provided a 

procedure for defendants to request resentencing if they had been convicted 

under previous versions of the law. (Stats. 2018, ch. 1015, § 4; see Lewis, 

supra, 11 Cal.5th at p. 959.) These changes were later expanded to cover

convictions for attempted murder as well. (Stats. 2021, ch. 551.)

3 This court ordered two of the nine enhancements stricken; it did not 

reverse the verdict on any count, nor did it alter the sentence imposed. 

(People v. Young, supra, B188300.)

4 The petition papers could not be located by the trial court and are not 

part of the record here. 
4

A person convicted of murder is eligible for resentencing if they were 

convicted of felony murder, or under the natural and probable consequences 

doctrine, or on 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).) 

However, a person convicted of attempted murder is only eligible for 

resentencing if they were convicted under the natural and probable 

consequences doctrine. (Ibid.; People v. Lovejoy (2024) 101 Cal.App.5th 860, 

865.)

“[U]nder the natural and probable consequences doctrine, an 

accomplice is guilty not only of the offense he or she directly aided or abetted 

(i.e., the target offense), but also of any other offense committed by the direct 

perpetrator that was the ‘natural and probable consequence’ of the crime the 

accomplice aided and abetted.” (People v. Gentile (2020) 10 Cal.5th 830, 843

(Gentile) [superseded by statute on another ground as stated in People v. 

Wilson (2023) 14 Cal.5th 839, 869].) A prosecution under that doctrine must

show that the defendant aided and abetted one crime, which foreseeably led 

to another. (Gentile, supra, 10 Cal.5th at pp. 843–844.)

In the context of attempted murder, a petition seeking resentencing

under section 1172.6 must demonstrate (1) that the charging document filed 

against the defendant permitted the prosecution to proceed under the natural 

and probable consequences doctrine, (2) that the petitioner was convicted of 

attempted murder, and (3) that the petitioner could not presently be 

convicted of attempted murder due to the changes in section 188 or 189. 

(§ 1172.6 subd. (a).) 

Upon receipt of a facially compliant petition, the trial court must hold a 

hearing “to determine whether the petitioner has made a prima facie case for 

relief.” (§ 1172.6, subd. (c).) The court may examine the record of conviction 
5

in determining whether the showing has been made, but must accept the 

petitioner’s allegations as true unless the court’s own documents contain facts 

refuting those allegations. (Lewis, supra, 11 Cal.5th at p. 971.)

We review the trial court’s inquiry de novo. (People v. Williams (2022) 

86 Cal.App.5th 1244, 1251.)

II. Analysis

Nothing in the record suggests, and Taylor does not argue, that the 

prosecution proceeded expressly under the natural and probable 

consequences doctrine. No jury instruction on that doctrine was given, nor 

was it mentioned by the prosecutor during argument. Instead, Taylor 

contends that the jury instructions, combined with the prosecutor’s use of 

certain language at trial, invited the jury to employ the natural and probable 

consequences doctrine in substance, even if not in name.

5

Taylor focuses on two instructions. The first, sometimes referred to as 

a “kill zone” instruction, told the jury that intent to harm one specific victim 

may include the intent to harm those close by: “[a] person who primarily 

intends to kill one person may also concurrently intend to kill other persons 

within a particular zone of risk. The intent is concurrent when the nature 

and scope of the attack, while directed at a primary victim, are such that it is 

reasonable to infer the perpetrator intended to kill the primary victim by 

killing everyone in that victim’s vicinity.” The second instruction explained

5 Taylor argues that he may have been convicted “under an invalid 

theory of imputed malice,” and uses similar terms throughout his briefing. 

As discussed above, this is not the correct framing of the issue. While that 

argument might be available to a defendant who was convicted of murder, 

Taylor was convicted of attempted murder, and therefore resentencing is only 

available to him if he was convicted under the natural and probable 

consequences doctrine. (§ 1172.6, subd. (a).)
6

aiding and abetting: “[a] person aids and abets the commission or attempted 

commission of a crime when he, one, with knowledge of the unlawful purpose 

of the perpetrator, and, two, with the intent or purpose of committing or 

encouraging or facilitating the commission of the crime, and [sic], three, by 

act or advice aids, promotes, encourages, or instigates the commission of the 

crime.”

Taylor argues that these instructions permitted the jury to find Taylor 

guilty if Young intended to kill anyone in range and Taylor intended to aid

Young in the crime of a drive-by shooting. According to Taylor, by repeatedly 

referring to the incident as a “drive-by shooting,” the prosecutor tried to lead 

the jury to a finding that Taylor intended to commit an assault with a 

firearm (§ 245 subd. (a)(2)), and then hold Taylor responsible for the 

attempted murder as a natural and probable consequence. Taylor’s

argument is not persuasive.

A similar argument was rejected in People v. Cortes (2022) 75 

Cal.App.5th 198. In that case, the defendant had driven his car past a liquor 

store and someone had fired out the window, killing a person. (Id. at p. 200.) 

There as here, defendant argued that the prosecutor had invited the jury to 

find that defendant aided and abetted an assault with a firearm, with murder 

as a natural and probable consequence. (Id. at pp. 201–202.) Pointing to the 

fact that no other crime had been specifically charged or argued, the court 

found “no merit” in the “speculation” that the jury would rely on an 

“unidentified and uncharged crime, contrary to the trial court’s instructions.” 

(Id. at pp. 205–206.) 

The same logic applies here. The phrase “drive-by shooting” is a factual 

description, not a legal term of art. A jury cannot be expected to link such a 

description to a different crime which was not presented to them. The trial 
7

court did not instruct the jurors on assault with a firearm, and there is no 

indication in the record that the jurors were asked to make any findings 

about such an offense. In fact, during her rebuttal argument at closing, the 

prosecutor told the jury not to consider assault with a deadly weapon. There 

was no attempt to divert the jury into finding Taylor guilty of a crime with 

which he was never charged.

Taylor complains that the trial court failed to properly describe the 

specific intent needed to find Young guilty,6 and then made it easier for the 

jury to find Taylor shared that intent as a direct aider and abettor. But even 

if the court erred in its instructions on the intent element of the crime, claims 

of general instructional error do not entitle Taylor to resentencing under 

section 1172.6.7 (People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936.) 

Finally, Taylor argues that the jury must have been confused because 

they convicted both Taylor and Young of firing “the exact same bullets.” He 

bases this argument on the jury’s special circumstances findings that both 

Taylor and Young “personally” discharged a firearm during the commission of 

the crime. However, section 1172.6 does not provide an avenue for general

6 In a subsequent case, People v. Canizales (2019) 7 Cal.5th 591, the 

California Supreme Court limited the “kill zone” theory to circumstances 

where the only reasonable inference is that the defendant intended to kill 

everyone within a certain area. The Court explained that anything less 

“essentially equated attempted murder with implied malice murder.” (Id. at 

p. 614.) Taylor argues that he has been convicted under a “no longer valid”

theory of attempted murder. However, as already explained, Taylor is only 

entitled to relief under section 1172.6 if he was convicted under the natural 

and probable consequences doctrine. Canizales did not involve or discuss 

that doctrine.

7 Because section 1172.6 is not the proper vehicle for review of 

instructional error, we need not and do not decide whether any such error 

occurred.
8

inquiry into trial proceedings, including the proceedings of the jury. (People 

v. Farfan (2021) 71 Cal.App.5th 942, 947.) The issue is not whether the jury 

was confused; the issue is whether Taylor was prosecuted and convicted

under a natural and probable consequences theory. (§ 1172.6, subd. (a); see 

also People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [disapproved on an 

unrelated point in Lewis, supra, 11 Cal.5th at p. 962].) He was not.

Because we conclude that Taylor was not convicted under the natural 

and probable consequences doctrine and therefore has not made a prima facie 

case for relief under section 1172.6, we need not consider his arguments 

about whether there are any bars to relief. Because we find no forfeiture 

based on the actions of Taylor’s appointed counsel at the hearing below, we 

need not discuss his alternative argument based on ineffective assistance of 

counsel.

DISPOSITION 

The order of the trial court is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.

WE CONCUR:

CURREY, P. J. MORI, J.