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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent

,

v.

JAMAAL GAIT HER

,

Defendant and Appellant

. B 307936

Los Angeles County Super. Ct. No. BA240013

- 01

APPEAL from an order of the Superior Court of
Los Angeles County, Curt is 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 Respon dent.

_________________________2 Jamaal Gaither appeals from the superior court’s order denying his petition under Penal Code section 1170.95 1 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 ha ve held the trial court must act not a s

a quasi

- appellate court but rather as an independent trier of fact

, who determine s 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 t he record is un clear a s 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

. FACT S AND PROCEDURAL BACKGROUND

1. The shooting at Maverick’s Flat 2 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. ( Gaithe r 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 yo u 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 L ee in the jaw. L ee fell to the floor and Gaither, Pierce, and Tweedy began hitting him with chairs. L ee heard gunshots, “which seemed to come from the group of p eople who were beating him.” ( Gaither I

.) In the meantime, another man, Reginald Mitchell , tried

to help L ee . “ ‘ [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 wa y 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 L ee ’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 .)
L ee 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 p rosecution and defense later stipulated that4

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 sh rine dedicated to the Shotgun Crips

. ” An officer testified at trial
that Gaither, Pierce, and Tweedy all were active members of
th at gang . When police questioned him , Gaither initially lied. Eventually, he admitted he’d thrown a beer can “at some guys

w ho 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 L ee , but said Pierce was the

one who knocked L ee down. Gaither said the gunman was Evil, a Santana Block C rip. 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 L ee ; he heard gunshots “[r]ight after that.” Gaither said he lied to the police because they told him they were “ ‘ g oing 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
Cr awford (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 indi ctment 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 personally5

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
T he 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 Murd er), 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, incl uding 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 (Cons piracy 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

- Cons pirator), 6.17 (Conspirators Not Bound by Act or Declaration of Non

- Conspirator), 6.18 (Commission of Act in Furtherance of a Conspiracy Does Not6 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 Gaith er 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. A nyone 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 t rying 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 me mber 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 th e 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 th e 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 t he shooter was, so long

as it was part of [Gaither’s] group. He is still on the hook.” In Gaither’s second trial, the prosecutor 5 flatly told the jury that Gaither “was not the trigger man.” The prosecutor said
he would explain “how it was that Jamaal Ga ither 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 actua lly
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 hom eys 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 th e team.” So, the prosecutor concluded, “Even though he’s not the shooter

, he helped in a very, very dangerous act.”
T he jury convicted Gaither of Sweeney’s murder, assault with a firearm on Crawford and Lee, and assault with a deadly weapon on Lee. The j ury acquitted Gaither of attempted murder

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

on the gang , and therefore the firearm, allegations. The People chose to retry th ose allegation s and the jury in the retrial found the allegation s 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 li fe for the firearm enhancement); seven years on count 3 (the upper term of four years plus three years for the gang e nhancement); 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. ( Gaith er 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 downloa dable form, Gaither checked boxes stating he was “convicted of 1 st or 2 nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine,” he “could not now be convicted
of 1 st or 2 nd degree murder because of changes mad e to Penal9

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 c hecked the box asking the court to appoint counsel for him.
The court 7 appointed counsel f or 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 t o 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 sup port 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 “m ajor 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.5 th 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 n ever testified they’d seen Gaither with a gun that night. Gaither noted
the defense ballistics expert testified “the bullet trajectories

s howed 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 h is 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 t o 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 whi ch 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. Co unsel 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 fl oor 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 knowle dge 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 p rosecutor 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 cour t 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 mur der.” 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 fr om 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.” T he court concluded

, “ S ubstantial
evidence showed that Gaither w as 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, ar med 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 d uring
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.5 th 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 its13

substantial evidence standard in denying appellant’s section 1170.95 petition.” However, on August 4, 2021, the Attorney
General filed a motion for supplemental br iefing. We granted
th e 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 a n 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 district 10 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” “ with out 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. R odriguez (2020) 58 Cal.App.5 th 227, 231, 245
, review grant ed Mar. 10, 2021, S 266652 ( Rodriguez ) ; People v. F ortman (2021) 64 Cal.App.5 th 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 C ourt of A ppeal 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 l imited 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. Genti le (2020) 10 Cal.5 th 830,
842

- 843 ( Gentile ) ; People v. Lewis (2021) 11 Cal.5 th 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 ab etted 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.5 th
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 ba sed 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.5 th at p. 839 .)” ( People v. Eynon (2021) 68 Cal.App.5 th 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

, su

pra , 68 Cal.App.5 th at p. 974

. See Lewis

, supra , 11 Cal.5 th at pp. 959

- 960; Gentile

, supra , 10 Cal.5 th 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
docume nt that allowed the prosecution to proceed under a15

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.5 th at pp. 960, 962

- 965 .) In conducting
the prima facie review, the court may consider t he 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 cou rt 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.5 th at p. 975 .) A petitioner’s murder conviction must stand if the

p rosecution 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 th at 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. Lope z (2020 ) 56 Cal.App.5 th 936, review granted
Feb. 10, 2021, S265974

, transferred to the C ourt of A ppeal
Dec. 22, 2021 with directions to vacate its decision and reconsider the cause in light of Senate Bill 775 ; Rodrigue z , supra, 58 Cal.App.5 th 227 ; People v . Clements (2021) 60 Cal.App.5 th 597
,16

review granted Apr. 28, 2021, S267624

, transferred to the
C ourt of A ppeal 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.5 th 113

. ) W e 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 a ider
and abettor. If he was, he is not eligible for resentencing. (See People v. Gutierrez

- Salazar (2019) 38 Cal.App.5 th 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.5 th 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 gui lty 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 pres ent 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 court17

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 invi tation

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 bot h
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 11 70.95, 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

.