Filed 1/19/22 P. v. Gaither CA2/3

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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.

JAMAAL GAITHER,

Defendant and Appellant.

B307936

Los Angeles County

Super. Ct. No. BA240013-01

APPEAL from an order of the Superior Court of 

Los Angeles County, Curtis B. Rappe, Judge. Reversed 

and remanded.

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, Idan Ivri and Gary A. Lieberman, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Jamaal Gaither appeals from the superior court’s order 

denying his petition under Penal Code section 1170.951 to 

vacate his 2001 conviction for the second degree murder of 

Africa Sweeney. Gaither contends the trial court used the 

wrong standard at the hearing in denying his petition based 

on its conclusion that substantial evidence supported a finding 

Gaither could be convicted under current law. We join other 

appellate courts that have held the trial court must act not as 

a quasi-appellate court but rather as an independent trier of fact,

who determines whether the People have proved—beyond a 

reasonable doubt—the petitioner is guilty under a theory that 

remains valid after the enactment of Senate Bill No. 1437. 

Because the record is unclear as to whether the trial court 

applied a substantial evidence standard or, acting as a finder 

of fact, applied the beyond a reasonable doubt standard, we 

reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

1. The shooting at Maverick’s Flat2

On July 3, 1999, Maverick’s Flat, a nightclub on 

Crenshaw Boulevard, had been rented for a private party. One 

of the party’s hosts noticed a group of people standing in front of

a restaurant next door to the club. Gaither was in the group. 

(Gaither I.)

Another group that included Africa Sweeney went into 

the club. Yet a third group—friends of one of the hosts—

approached the club. Someone in Gaither’s group shouted, 

1 References to statutes are to the Penal Code.

2 We previously granted Gaither’s motion to take judicial 

notice of the appellate record in his direct appeal, People v. 

Gaither (Feb. 4, 2004, B153450) [nonpub. opn.] (Gaither I).
3

“Shotgun.” The Shotgun Crips are a gang. Someone in Gaither’s 

group said, “Do you think the hood is a joke[?]” Someone in 

Gaither’s group threw a beer bottle or can that hit someone 

in the host’s friends’ group; Gaither’s group then chased that 

group toward Maverick’s Flat and the group ran into the club. 

(Gaither I.)

The host tried to hold the door closed; it had no lock. The 

host recognized a man named Marvin Pierce in Gaither’s group. 

Another member of Gaither’s group lifted his shirt and reached 

into his waistband for a black gun that looked like a revolver. 

The host let go of the door and ran into the club. (Gaither I.)

Five men entered the club, “ ‘throwing up their hands’ ” 

and talking about “ ‘this is Shotgun.’ ” Three of the men were 

Gaither, Pierce, and a man named Juano Tweedy. A member 

of the Sweeney group, Larry Lee, saw Gaither and Tweedy reach 

under their shirts toward their waistbands. Pierce then hit Lee

in the jaw. Lee fell to the floor and Gaither, Pierce, and Tweedy 

began hitting him with chairs. Lee heard gunshots, “which 

seemed to come from the group of people who were beating him.” 

(Gaither I.)

In the meantime, another man, Reginald Mitchell, tried 

to help Lee. “ ‘[O]ne of the guys raised a gun and told [him] to 

back up.’ ” “It appeared that another one of the intruders also 

had a gun because of the way he was holding his hand down 

at his side, but [Mitchell] did not actually see a second gun.” 

Sweeney, who was on a balcony, threw a chair at Lee’s attackers. 

A man named Keith Crawford also threw a chair from the

balcony at the men attacking Lee. “The next moment, [Mitchell]

heard gunshots.” (Gaither I.)

Lee and Crawford were shot in the leg. Sweeney—

hit in the back and shoulder—was killed. Police found three 

.45-caliber casings and one spent .45-caliber projectile in the club. 

(Gaither I.) The prosecution and defense later stipulated that 
4

a qualified firearms expert examined the casings and determined 

they all were fired by the same gun.

Police found gang materials in Gaither’s bedroom, 

including “a photo collage which appeared to be part of a shrine 

dedicated to the Shotgun Crips.” An officer testified at trial 

that Gaither, Pierce, and Tweedy all were active members of 

that gang. When police questioned him, Gaither initially lied. 

Eventually, he admitted he’d thrown a beer can “at some guys 

who identified themselves as members of the Rolling 60’s 

Crips gang.” He also admitted following the other group into 

the club and taking a swing at Lee, but said Pierce was the 

one who knocked Lee down. Gaither said the gunman was 

Evil, a Santana Block Crip. The next day, Gaither gave police 

“an entirely different name for the gunman.” Police never 

were able to identify anyone by that name. (Gaither I.)

A defense ballistics expert testified at trial that he’d traced 

the trajectories of two bullet holes found in the club’s balcony

and determined neither had come from the dance floor. Gaither 

testified at trial that he’d seen Pierce punch Lee; he heard 

gunshots “[r]ight after that.” Gaither said he lied to the police 

because they told him they were “ ‘going to put the murder on 

[him]’ ” and he “ ‘wouldn’t see [his] family anymore.’ ” (Gaither I.)

2. The charges, trials, verdict, and sentence

A grand jury indicted Gaither, Pierce, and Tweedy for 

the murder of Sweeney (count 1), the attempted murder of 

Crawford (count 2), assault with a firearm on Crawford (count 3), 

the attempted murder of Lee (count 4), assault with a firearm 

on Lee (count 5), and “assault with [a] deadly weapon, by 

means likely to produce great bodily injury” on Lee (count 6). 

The indictment also alleged gang and firearm enhancements: 

Counts 1, 2, and 4 alleged a principal discharged a firearm 

causing great bodily injury or death to the victims; and Counts 3 

and 5 alleged Tweedy personally used a firearm and personally 
5

inflicted great bodily injury on the victims. Count 7 of the 

indictment charged Tweedy with possession of a firearm 

by a felon.

Gaither was tried twice. (Tweedy was tried separately.)3 

The court gave the jury (among other instructions) CALJIC 

Nos. 8.10 (Murder–Defined), 8.11 (“Malice Aforethought”–

Defined), 8.20 (Deliberate and Premeditated Murder), 8.30 

(Unpremeditated Murder of the Second Degree), 8.31 (Second 

Degree Murder–Killing Resulting from Unlawful Act Dangerous 

to Life), 8.70 (Duty of Jury as to Degree of Murder), 8.71 (Doubt 

Whether First or Second Degree Murder), and 8.74 (Unanimous 

Agreement as to Offense). The court also instructed the jury 

on aiding and abetting, including the natural and probable 

consequences doctrine, giving CALJIC Nos. 3.00 (Principals–

Defined), 3.01 (Aiding and Abetting–Defined), and 3.02

(Principals–Liability for Natural and Probable Consequences). 

In the instruction on natural and probable consequences, 

the court told the jury the target crime was assault by means 

of force likely to produce great bodily injury.

4

3 According to Gaither’s counsel, Tweedy “was acquitted 

of all shooting-related charges in 2001,” and Pierce “accepted 

a plea to a reduced assault charge and was released from prison 

years ago.”

4 In addition, the court instructed the jury on conspiracy, 

giving CALJIC Nos. 6.11 (Conspiracy–Joint Responsibility), 

6.10.5 (Conspiracy and Overt Act–Defined–Not Pleaded as a 

Crime Charged), 6.12 (Conspiracy–Proof of Express Agreement 

Not Necessary), 6.13 (Association Alone Does Not Prove 

Membership in Conspiracy), 6.16 (When Conspirators Not Liable 

for Act or Declaration of Co-Conspirator), 6.17 (Conspirators 

Not Bound by Act or Declaration of Non-Conspirator), 6.18 

(Commission of Act in Furtherance of a Conspiracy Does Not 
6

In closing argument in Gaither’s first trial, the prosecutor 

told the jurors, “We may not know whether Jamaal Gaither had 

a gun when he was reaching in the waistband or not.” He said, 

“Is the evidence clear that Jamaal Gaither fired the fatal rounds? 

No. Does it have to be? No.” The prosecutor explained “the 

notion of aiding and abetting,” using a basketball team as 

an analogy and asking the jurors, “What is a street gang but

a team of criminals?”

The prosecutor continued, 

“People who aid and abet a crime are just 

as guilty as the people who actually commit 

it. Anyone who aids and abets, encourages, 

or promotes the crime knowing that it is 

something wrong, wanting to help, is on the 

hook just as much as the trigger man. [¶] The 

concept, however, goes even further than that. 

Not only are you guilty of any crime that you 

help to commit, you are guilty of any crime you 

should have seen coming. Any crime that’s the 

natural and probable consequence of the crime 

that you’re trying to help, you’re on the hook 

for that too.”

Itself Prove Membership in Conspiracy), and 6.20 (Withdrawal 

from Conspiracy). The court told the jury, “A member of 

a conspiracy is not only guilty of the particular crime that 

to his knowledge his confederates agree to and did commit, 

but is also liable for the natural and probable consequences 

of any crime . . . of a co-conspirator to further the object of the

conspiracy, even though that crime was not intended as part 

of the agreed upon objective and even though he was not present 

at the time of the commission of that crime.”
7

The prosecutor went on to argue Gaither “charg[ed] into 

a club,” “going after rival gang members,” then “punch[ed] 

somebody in that club.” The prosecutor asked, “Should he have 

known that someone was going to get shot? Should he have 

known that someone was going to get killed? . . . Of course he 

should have known. That means he’s on the hook for it. Even 

if he didn’t intend for someone to die . . . .” The prosecutor then 

discussed conspiracy, telling the jurors Gaither was “still on 

the hook” even if he “really didn’t help anybody else commit the 

crime, but he just sort of charged in there with the other guys.”

After discussing the jury instructions on murder, the 

prosecutor reiterated Gaither was “on the hook for this regardless 

of whether or not he himself intended to kill if he should have 

known that it was going to go down that way.” The prosecutor 

never argued Gaither himself was the shooter. Instead, he told 

the jury, “It doesn’t even matter who the shooter was, so long 

as it was part of [Gaither’s] group. He is still on the hook.”

In Gaither’s second trial, the prosecutor5 flatly told the jury

that Gaither “was not the trigger man.” The prosecutor said 

he would explain “how it was that Jamaal Gaither was guilty 

of those crimes even though he himself didn’t pull that trigger.”

Again using the analogy of a basketball team, the 

prosecutor stated that, under California law, “if you help people 

commit crimes you’re just as guilty as the ones who actually 

do it.” Moreover, the prosecutor said, “You’re guilty not only of 

the crime that you try to help [with] but of any crime that follows 

that you should have seen coming.” The prosecutor told the jury 

that Gaither had come “charging into a club where he was not 

welcome” and “participated in the beating of an innocent person

5 The same deputy district attorney tried both trials.
8

in the company of gang members.” So, the prosecutor argued, “It 

should come as no great shock and no great surprise, especially 

to Jamaal Gaither, that one of his homeys was going to whip out 

a gun and start shooting.” The prosecutor repeated: “[I]t should 

come as no great shock that when he and his homeys jump some 

innocent guy and one of his homeys gets it into his head to start 

shooting, he’s on the [hook] too. As a member of the team.” So, 

the prosecutor concluded, “Even though he’s not the shooter, 

he helped in a very, very dangerous act.”

The jury convicted Gaither of Sweeney’s murder, assault 

with a firearm on Crawford and Lee, and assault with a deadly 

weapon on Lee. The jury acquitted Gaither of attempted murder 

of Crawford and Lee. The jury was unable to reach a verdict 

on the gang, and therefore the firearm, allegations. The People 

chose to retry those allegations and the jury in the retrial found 

the allegations true. (Gaither I.)

The trial court sentenced Gaither to 40 years to life in 

the state prison on count 1 (15 to life for the murder and 25 to life 

for the firearm enhancement); seven years on count 3 (the upper 

term of four years plus three years for the gang enhancement); 

and two years on count 5 (one-third the midterm of three years 

plus one year for the gang enhancement). On count 6, the court 

sentenced Gaither to two years but stayed the sentence under 

section 654. We affirmed Gaither’s conviction. (Gaither I.)

3. Gaither’s petition, the order to show cause, 

the hearing, and the trial court’s ruling

After Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate 

Bill 1437) took effect, Gaither filed on February 21, 2019 a 

petition for resentencing. On a downloadable form, Gaither 

checked boxes stating he was “convicted of 1st or 2nd degree 

murder pursuant to the felony murder rule or the natural and 

probable consequences doctrine,” he “could not now be convicted 

of 1st or 2nd degree murder because of changes made to Penal 
9

Code §§ 188 and 189,” he was “not the actual killer,” and he “did 

not, with the intent to kill, aid, abet, counsel, command, induce, 

solicit, request, or assist the actual killer in the commission of 

murder in the first degree.”6 Gaither also checked the box asking 

the court to appoint counsel for him.

The court7 appointed counsel for Gaither. On August 5, 

2019, the prosecution filed a brief contending section 1170.95 

was unconstitutional. On October 15, 2019, Gaither’s counsel 

filed a reply to the prosecution’s “constitutional challenge” to 

the statute. On January 21, 2020, the court issued an order 

to show cause, “if any, why the relief requested in the petition 

should not be granted.”

On July 29, 2020, Gaither’s counsel filed a brief in support 

of his petition. Gaither contended “the prosecution relied 

exclusively upon the natural and probable consequences doctrine 

based on aiding and abetting and conspiracy theories with 

Petitioner Gaither’s role in the physical assault on the dance floor 

as the target offense (for which he was convicted based on his 

direct role in this offense).” Gaither asserted “[t]he prosecution 

6 Gaither also checked a box stating, “I was not a major 

participant in the felony or I did not act with reckless indifference 

to human life during the course of the crime or felony.” We need 

not discuss this allegation further, as Gaither was not tried for 

felony murder, and the “major participant/reckless indifference” 

issue applies only in felony-murder cases. (§ 189, subds. (a) & 

(e).)

7 Gaither’s petition was assigned to Judge Curtis B. Rappe, 

the same judge who tried both of his trials in 2000 and 2001. 

(See § 1170.95, subd. (b)(1); People v. Santos (2020) 53 

Cal.App.5th 467, 472-473 [resentencing petition must be 

assigned to “judge that originally sentenced the petitioner” 

unless that judge is “not available”].)
10

never alleged or argued that Petitioner Gaither was guilty 

of murder . . . based on a theory of express or implied malice 

as either the alleged shooter, an aider and abettor, or a 

co-conspirator.”

Gaither argued Lee, Crawford, and Mitchell never testified 

they’d seen Gaither with a gun that night. Gaither noted 

the defense ballistics expert testified “the bullet trajectories 

showed that the shots were fired from the far side of a partition

separating the dance floor” from another area, and “ ‘[n]either 

one’ ” came “ ‘from the dance floor.’ ”

8

The prosecution filed a brief disputing Gaither’s contention

that its sole theory at his trial was natural and probable 

consequences. The prosecutor noted the jury was instructed 

on implied malice. The prosecutor went on to offer “another 

valid analytical approach.” That “approach” bordered on 

the unintelligible. The prosecutor seemed to argue that, 

even after Senate Bill 1437, a petitioner is ineligible for relief 

if “a reasonable jury could find that the petitioner’s actions in 

the totality of the circumstances of the [target offense of] assault

8 Gaither’s counsel submitted an accompanying affidavit 

in which he stated he’d represented Tweedy—Gaither’s 

co-defendant—at Tweedy’s trial. Counsel stated that, in 

Tweedy’s trial, the prosecution alleged Tweedy fired the shots 

that killed Sweeney from the dance floor, while standing next 

to Gaither and Pierce. Counsel also stated he went to the club 

in 2000, the manager showed him two bullet strikes in the 

balcony wall, and “[b]ased on the angles of the entries and exits 

of these bullet strikes, it appeared to [him] that the gunshots 

did not come from the dance floor as the prosecution claimed, 

but rather came from the other side of the club away from the 

dance floor some distance away.” The record on appeal contains 

only the first page of counsel’s affidavit.
11

‘were deliberately performed with knowledge of the danger to 

and with a conscious disregard for human life.’ ” The prosecutor 

seemed to contend the natural and probable consequences 

doctrine remained a valid basis for at least a second degree 

murder conviction. At the subsequent hearing, the prosecutor 

told the court, “I think both the implied malice theory and an 

amended form of the natural and probable consequences doctrine 

which relies on implied malice are still viable under 1437.”

The parties appeared before the court on September 1, 2020

for an evidentiary hearing. (See § 1170.95, subd. (d)(3).) Gaither 

did not offer any new or additional evidence. The prosecution 

called an investigator to testify about lyrics he’d found on the 

internet of two songs by a musician named Jay Capone. The 

prosecutor told the court one of the songs had been marked as 

a defense exhibit at trial and Gaither had “indicated that he was 

involved in the production of it.” After hearing from the witness, 

the court sustained Gaither’s objections to the lyrics. The only 

other evidence the prosecution offered was the Attorney General’s

file, presumably from Gaither’s direct appeal.

After hearing at length from counsel, the court denied 

Gaither’s petition. On the same day, the court issued a detailed 

written opinion. The court stated it had “instructed the jury

on the theories that [Gaither] was (1) a direct perpetrator, 

(2) a direct aider and abettor, and (3) an aider and abettor and/or 

a coconspirator under the natural and probable consequences 

doctrine.” The court continued, “The fact that a jury instruction 

was given on the now defunct natural and probable consequences 

doctrine of aiding and abetting or conspiracy . . . would not 

preclude a conviction on a separate but still viable theory of 

liability for the murder.” The court concluded the “People 

ha[d] proved beyond a reasonable doubt that [Gaither] could 

be convicted of murder of any degree . . . as a perpetrator and/or 

as a direct aider and abettor under the current law . . . .”
12

The court quoted at length from our opinion in Gaither I. 

The court then stated, “Substantial evidence supports [Gaither’s] 

conviction of murder as a direct perpetrator under the current 

law effective January 1, 2019.” The court concluded, “Substantial 

evidence showed that Gaither was armed with a gun and 

used it to kill the victim,” the evidence was “substantial enough 

to support a willful, deliberate, and premeditated killing” by 

Gaither, and “[a] jury could reasonably conclude that all three 

[men], including Gaither[,] were armed, and that [at] least 

two guns, a revolver, possessed by [Tweedy], and a .45-caliber 

semiautomatic pistol, possessed by Gaither, were used in the 

shooting.”

The court said “one [c]an be both the actual perpetrator

in part and a direct aider an[d] abettor in part.” Citing the 

gang expert testimony at trial, the court stated our Supreme 

Court has recognized gang rivalry “as strong evidence of motive.” 

The court noted, “Gaither and his group were all Shotgun Crips,”

concluding, “Gaither and his group went, armed with guns, 

to a location where gangs congregate and could be provoked, 

and where a killing would enhance fear of the Shotgun Crips. 

The manner of killing was a close[-]range shooting during which 

Gaither fired three shots from his .45-caliber weapon during 

which two shots killed Afri[c]a Sweeney, a secondary target.”

4. The Attorney General’s position on appeal

In response to Gaither’s opening brief, the Attorney 

General filed a respondent’s brief citing People v. Duke (2020) 

55 Cal.App.5th 113 (Duke), review granted Jan. 13, 2021, 

S265309,

9 and arguing “the trial court correctly applied the 

9 On November 23, 2021, the Supreme Court transferred

Duke back to the court of appeal with directions to vacate its 
13

substantial evidence standard in denying appellant’s section 

1170.95 petition.” However, on August 4, 2021, the Attorney 

General filed a motion for supplemental briefing. We granted 

the motion. The Attorney General’s supplemental respondent’s 

brief states, “Upon further consideration, respondent now finds 

Duke to be less persuasive than other authorities. The trial court 

thus should have weighed the evidence as an independent trier 

of fact.”

However, the Attorney General argues, “the error was 

harmless.” The Attorney General contends People v. Watson

(1956) 46 Cal.2d 818, 836 is the test “[w]hen a trial court error 

constitutes application of the wrong standard or burden of proof 

at a proceeding created entirely by state law.” The Attorney 

General says, “Whether or not appellant was the actual killer, 

the court was convinced there was overwhelming evidence of 

actual malice and premeditation . . . .”

On September 3, 2021, Gaither filed a supplemental reply 

brief. Gaither cited two cases from this district10 in which the 

appellate court remanded the case “where the trial court applied 

the wrong standard of proof at a section 1170.95, subdivision 

(d)(3) hearing” “without engaging in a prejudice analysis.” 

Gaither argued that—whether judged under Watson or Chapman 

v. California (1967) 386 U.S. 18—the error was prejudicial.

decision and reconsider the cause in light of Senate Bill No. 775 

(Stats. 2021, ch. 551) (Senate Bill 775). (S265309.)

10 People v. Rodriguez (2020) 58 Cal.App.5th 227, 231, 245, 

review granted Mar. 10, 2021, S266652 (Rodriguez); People v. 

Fortman (2021) 64 Cal.App.5th 217, 221, 226-227, review granted

July 21, 2021, S269228. On December 22, 2021, the Supreme 

Court transferred both of these cases back to the Court of Appeal 

with directions to vacate the decisions and to reconsider the cases 

in light of Senate Bill 775. (S266652, S269228.)
14

DISCUSSION

Senate Bill 1437 took effect January 1, 2019. (See Stats. 

2018, ch. 1015, § 4.) It limited accomplice liability under the 

felony-murder rule and eliminated the natural and probable 

consequences doctrine as it relates to murder, to ensure a 

person’s sentence is commensurate with his or her individual

criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 

842-843 (Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971 

(Lewis).)

Before the passage of Senate Bill 1437, under the natural 

and probable consequences doctrine a defendant was “liable 

for murder if he or she aided and abetted the commission of 

a criminal act (a target offense) and a principal in the target 

offense committed murder (a nontarget offense) that, even if 

unintended, was a natural and probable consequence of the 

target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th

241, 248.) Senate Bill 1437 amended section 188 to provide that, 

except for first degree felony murder, “in order 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 his or her 

participation in a crime.” (§ 188, subd. (a)(3).) “The requirement 

that the principal act with malice eliminates all murder liability 

under the natural and probable consequences doctrine. (Gentile,

supra, 10 Cal.5th at p. 839.)” (People v. Eynon (2021) 68

Cal.App.5th 967, 974 (Eynon).)

“Senate Bill 1437 created section 1170.95 to provide a 

mechanism for retroactive application of amended sections 188 

and 189 to certain defendants convicted of murder under prior 

law.” (Eynon, supra, 68 Cal.App.5th at p. 974. See Lewis, supra, 

11 Cal.5th at pp. 959-960; Gentile, supra, 10 Cal.5th at p. 843.) 

A defendant is eligible for relief under section 1170.95 if he meets 

three conditions: (1) he was charged with murder by a charging 

document that allowed the prosecution to proceed under a 
15

natural and probable consequences or felony murder theory; 

(2) he was convicted of first or second degree murder; and (3) 

he could no longer be convicted of first or second degree murder

due to changes to sections 188 and 189 made by Senate Bill 1437. 

(§ 1170.95, subd. (a).)

Upon the filing of a facially sufficient petition, the trial 

court must (1) appoint counsel for the petitioner if requested, 

(2) allow the People to file a response to the petition and the 

petitioner to file a reply, and (3) determine whether the petitioner 

has made a prima facie case for eligibility or entitlement to relief. 

(Lewis, supra, 11 Cal.5th at pp. 960, 962-965.) In conducting 

the prima facie review, the court may consider the record 

of conviction. (Id. at pp. 970-972.) “If the petitioner makes 

a prima facie showing that [he or she] is entitled to relief, the 

court shall issue an order to show cause.” (§ 1170.95, subd. (c).) 

“ ‘Once the order to show cause issues, the court must hold a 

hearing to determine whether to vacate the murder conviction 

and to recall the sentence and resentence the petitioner on any 

remaining counts.’ ” (Eynon, supra, 68 Cal.App.5th at p. 975.)

A petitioner’s murder conviction must stand if the 

prosecution proves, beyond a reasonable doubt, that the 

conviction is valid under a still-viable theory of liability. 

(§ 1170.95, subds. (a) & (d)(3).) “Does this require the 

prosecution to convince the trial court hearing the petition to 

conclude that it would convict defendant on a still-viable theory, 

or merely to convince that court that a reasonable jury could

convict defendant on a still-viable theory? The Court of Appeal 

is split, with a majority following the former rule.” (Compare 

People v. Lopez (2020) 56 Cal.App.5th 936, review granted 

Feb. 10, 2021, S265974, transferred to the Court of Appeal 

Dec. 22, 2021 with directions to vacate its decision and reconsider 

the cause in light of Senate Bill 775; Rodriguez, supra, 58 

Cal.App.5th 227; People v. Clements (2021) 60 Cal.App.5th 597, 
16

review granted Apr. 28, 2021, S267624, transferred to the 

Court of Appeal Dec. 22, 2021 with directions to vacate its 

decision and reconsider the cause in light of Senate Bill 775, 

with Duke, supra, 55 Cal.App.5th 113.) We join our colleagues

who have required an independent finding by the trial court.

As the trial court observed here, with the natural and 

probable consequences doctrine “now defunct,” the question 

is whether Gaither was the actual shooter or a direct aider 

and abettor. If he was, he is not eligible for resentencing. 

(See People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417

[Senate Bill 1437 amended the Penal Code to ensure murder 

liability is not imposed on a person who was not the actual killer]; 

People v. Nguyen (2020) 53 Cal.App.5th 1154, 1157, 1167-1168 

[petitioner not entitled to relief where he was convicted as direct 

aider and abettor].) But if he was not, and was convicted only 

under the natural and probable consequences doctrine, he is 

entitled to relief.

The question of whether Gaither committed murder under 

a still-valid theory is a factual question, and at a section (d)(3) 

hearing, the People are required to prove to the trial court

beyond a reasonable doubt that the petitioner is guilty of murder 

on a theory of murder valid after Senate Bill 1437’s enactment. 

It is unclear if the court here denied Gaither’s petition based on 

the court’s own finding beyond a reasonable doubt that Gaither 

would be guilty of murder within the meaning of sections 188 

and 189, as amended by Senate Bill 1437.

Rejecting Gaither’s counsel’s argument that the question 

was what the jury had decided, the court noted the prosecution 

had to prove beyond a reasonable doubt “that he could be 

convicted under the present law.” However, the court then asked 

counsel, “[W]here in the statute does it say that I am the trier 

of fact?” The court referred to “a jury making that decision,” 

adding, “because of the sufficiency of the evidence.” The court 
17

told counsel, “I have to decide could a reasonable jury find that 

that’s the sufficiency of the evidence.” And in its written ruling 

the court referred to “substantial evidence” and what “[a] jury 

could reasonably conclude.”

In light of this ambiguity, we reverse the court’s order and 

remand for a new hearing at which the People may seek to prove

to the trial court beyond a reasonable doubt that Gaither was 

the actual killer or aided and abetted the actual killer with 

the intent to kill. We decline the Attorney General’s invitation 

to tackle the question of whether any error was harmless. The 

determination of whether Gaither is eligible or ineligible for 

resentencing beyond a reasonable doubt is to be decided in the 

first instance by the superior court—which presided over both 

of Gaither’s trials—acting as fact finder and using the proper 

standard of proof.
18

DISPOSITION

The September 1, 2020 order denying Jamaal Gaither’s 

section 1170.95 petition is reversed and the matter remanded for 

a new evidentiary hearing under section 1170.95, subdivision (d), 

applying the correct standard of proof as set forth in this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.