Filed 1/4/24 P. v. Smith CA2/4

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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.

DONALD FRANKLIN SMITH,

Defendant and Appellant.

B321024

Los Angeles County

Super. Ct. No. A711739

APPEAL from an order of the Superior Court of Los 

Angeles County, Henry J. Hall, Judge. Affirmed. 

John Steinberg, 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, Senior 

Assistant Attorney General, Dana Muhammad Ali and Colleen 

M. Tiedemann, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

In 1995, a jury convicted defendant and appellant Donald 

Franklin Smith of two counts of first degree murder, two counts 

of second degree murder, and one count of attempted murder. 

After a penalty trial, the jury returned a verdict of death. 

In 2020, Smith filed a petition for resentencing under 

former Penal Code section 1170.95.

1 The trial court issued an 

order to show cause on the second degree murder and attempted 

murder counts, then, following an evidentiary hearing, granted 

Smith relief on those counts. The court subsequently vacated the 

death sentence, and resentenced Smith to consecutive terms of 

life without the possibility of parole on the first degree murder 

counts.

On appeal, Smith argues because the jury was instructed 

on the natural and probable consequences doctrine, the trial 

court erred by denying his petition on the first degree murder 

convictions at the prima facie stage. He further argues he is 

entitled to an evidentiary hearing on one of those counts. We 

disagree. The trial court properly denied relief on those counts at 

the prima facie stage because the record demonstrates they were 

not based on the natural and probable consequences doctrine, but 

rather on the theory that Smith harbored the intent to kill. We 

therefore affirm the trial court’s order denying relief on the first 

degree murder counts. 

1 All undesignated statutory references are to the Penal 

Code. Effective June 30, 2022, the Legislature renumbered 

section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) 

There were no substantive changes to the statute. 
3

PROCEDURAL BACKGROUND2

In 1995, a jury convicted Smith of the first degree murders 

of Andre Armstrong and James Brown (counts three and four), 

the second degree murders of Loretha Anderson and Chemise 

English (counts one and two), and the attempted murder of 

Carlos English (count five). (§§ 187, subd. (a), 664.) The jury 

found true the special circumstance allegation that Smith 

committed multiple murders and at least one of the murders was 

in the first degree. (§ 190.2, subd. (a)(3).) Following a penalty 

phase trial, the trial court sentenced Smith to death. The 

Supreme Court affirmed the judgments of Smith and his 

codefendants in People v. Bryant, Smith and Wheeler (2014) 60 

Cal.4th 335 (Bryant, Smith, and Wheeler).

In 2020, Smith filed a resentencing petition under former 

section 1170.95. In February 2022, the trial court held an 

evidentiary hearing, then issued a written order granting relief 

on the second degree murder and attempted murder counts. The 

court vacated the convictions on those counts, but denied relief on 

the first degree murder counts.

In March 2022, the trial court vacated the death sentence 

and scheduled a resentencing hearing. Then, in April 2022, the 

court sentenced Smith to consecutive terms of life without the 

possibility of parole on those counts.

Smith timely appealed.

2 We granted Smith’s request for judicial notice of the record 

of his jury trial. That record was prepared as part of Smith’s 

automatic appeal in California Supreme Court case number 

S049596.
4

FACTUAL BACKGROUND3

“The presentation of guilt phase evidence lasted two and 

one-half months. It included the testimony of 121 witnesses and 

more than 270 exhibits including hundreds of pages of documents 

and a number of video and audio tapes. In the penalty phase, 41 

witnesses testified over the course of seven days. We present here 

for background purposes a synopsis of the significant evidence, 

generally viewed in the light most favorable to the verdicts. 

Additional factual and procedural details necessary to resolve 

defendants’ appellate claims are provided in the pertinent 

discussion.

“A. Guilt Phase

“1. Overview

“The original charges included a number of noncapital 

offenses with additional defendants involved in the Bryant 

Family drug operation. The court severed and tried the capital 

allegations first. The prosecution’s basic theory was that Bryant 

directed the shootings of Armstrong and Brown because 

Armstrong was a threat to Bryant’s business. The prosecution 

maintained that Smith, Wheeler, and codefendant Settle were 

underlings who participated in the murders at Bryant’s direction. 

After Armstrong and Brown were killed, the prosecution 

asserted, Wheeler shot Ms. Anderson and Chemise and 

3 The following facts are taken from the Supreme Court’s 

decision resolving Smith’s direct appeal in Bryant, Smith, and 

Wheeler, supra, 60 Cal.4th 335. We include this information 

solely to provide background and context for the parties’ 

arguments, and do not rely on it to resolve this appeal. (See 

People v. Delgadillo (2022) 14 Cal.5th 216, 222, fn. 2.) 
5

attempted to murder Carlos to eliminate them as potential 

witnesses.

“Smith presented no evidence at the guilt phase. Wheeler 

testified and admitted some low-level activity in the drug 

business, but claimed he was not involved in the murders. Bryant 

also admitted he was a member of the organization. He asserted 

his role was less significant than the prosecution alleged, and 

that he had no role in the murders. 

“2. Prosecution Evidence

“In the 1980’s, Bryant and his older brother Jeff Bryant 

(Jeff) controlled a large-scale cocaine operation in the suburbs of 

Los Angeles. Their organization was known as ‘the Family’ or ‘the 

Bryant Family’ and had over 100 employees. A number of these 

testified at trial about Family operations. Seized records 

indicated the Family took in well over $1 million during three 

months of 1988.

“The Family used a number of houses to prepare and sell 

drugs and process the money from sales. Typically, the houses 

were fortified. Windows and doors were covered and locked, [and] 

metal gates with electronic locks and blackout screens were 

erected at front entrances to create ‘sally ports.’ Someone 

entering the house would be enclosed between two locked gates 

and unable to see farther into the residence. Barricaded or 

reinforced locked doors inside blocked access between rooms.

“These fortifications were encountered during interdiction 

operations in 1984 and 1985. Ultimately, police served search 

warrants at several Family houses. Service of the warrants 

required the use of various entry tactics. Sometimes a vehicle 

resembling a military tank would break a hole in an exterior wall 

so officers could enter. As a result of these investigations, Jeff 
6

pleaded guilty to charges of selling cocaine and operating a house 

where narcotics were sold. Defendant Bryant pleaded guilty to 

conspiracy. He admitted hiring a coconspirator to sell cocaine at a 

Bryant Family ‘rock house’ on Wheeler Avenue, the same house 

where the murders later occurred (hereinafter sometimes 

referred to as Wheeler Avenue). Apparently, these events were 

only a minor setback; widespread operations continued. When 

Bryant was released from custody, he ran the street enterprise. 

Although Jeff remained imprisoned, he was still considered the 

overall Family leader. Houses damaged during police raids were 

repaired, refortified, and returned to service.

“The Family also engaged in ancillary violent activities. As 

relevant here, in 1982, Bryant and Jeff hired Andre Armstrong to 

act as a ‘hit man.’ Armstrong subsequently shot Reynard 

Goldman for failing to pay a $50 drug debt. He killed Kenneth 

Gentry, who had vandalized another Bryant brother’s van. 

Bryant, Jeff, and Armstrong were charged with the Goldman 

assault and Gentry murder. After the Family bribed and 

threatened witnesses, charges against the Bryant brothers were 

dropped. Armstrong, however, was convicted at trial of felony 

assault and first degree murder. When his convictions were 

reversed on appeal, he pleaded guilty to felony assault and 

voluntary manslaughter. He was paroled in July 1988.

“While Armstrong was in prison, Bryant and other Family 

employees sent thousands of dollars to him and his relatives. 

Several months before Armstrong was paroled, the Family helped 

his friend James Brown set up a cocaine operation in Monterey. 

Nonetheless, Armstrong remained unhappy with the level of 

support he had received. Weeks after meeting Brown in 

Monterey, Armstrong decided they should return to Los Angeles. 
7

Armstrong told several people, including police officers who had 

interviewed him in prison, that he intended to ‘squeeze’ the 

Bryants for money and part of their business. He considered 

them weak, and felt they failed to honor their promise to prevent 

his conviction. While in Monterey, Armstrong began an intimate 

relationship with Bryant’s ex-wife, Tannis Curry. These decisions 

proved ill advised.

“On Friday, August 26, 1988, Brown, Andrew Greer, Elaine 

Webb, and Loretha Anderson and her two children moved to Los 

Angeles. Armstrong and Tannis had gone there a few days 

earlier. Bryant had provided an apartment, but it was dirty. 

Armstrong wanted Bryant to pay for cleaning before they moved 

in. On Saturday, the group went to a pool hall to meet Bryant 

and complain about the accommodations. On Sunday, Armstrong, 

Brown, and Greer went to Tannis’s separate apartment. 

Armstrong paged Bryant, then received a call. He told the others 

they were to meet ‘Stan’ at a Wheeler Avenue house to pick up 

$500 and cleaning supplies. Armstrong told Tannis to bring a 

pistol, which she placed in her purse.

“Before meeting Stan, the group went to the home of 

Tannis’s aunt. When they left, Tannis remained behind. Greer 

was concerned about the meeting and did not attend. Anderson 

decided she and her children would go along to the meeting so 

they could all get something to eat afterwards.

“Several people near the Wheeler Avenue house heard 

multiple gunshots at approximately 5:00 p.m. Shortly thereafter, 

a tall, thin African-American man emerged, went to a car parked 

outside, and shot into the car. He then got in the car and drove 

away. One witness identified a photograph of defendant Wheeler 
8

as the driver.[

4] A witness also saw what might have been a car 

owned by Bryant leaving the house after the shooting. Another 

witness saw a large green car with a driver, front seat passenger, 

and two men in the backseat leaning against each other in an 

unusual way.

“Within minutes of the shootings, the victims’ car was 

found about seven blocks away. Inside were the lifeless bodies of 

Loretha Anderson and Chemise English. Anderson had been shot 

several times with both a shotgun and a handgun. Chemise had 

been fatally shot in the neck by a handgun at close range. Carlos 

was also in the car. While not shot, he was injured by flying 

glass.

“Four days later the bodies of Armstrong and Brown were 

found in roadside brush approximately five miles from Wheeler 

Avenue. Armstrong had been shot twice with a shotgun. A shot to 

the center of his chest was probably fired from a distance of four 

feet or less. A second to his head was apparently fired with the 

shotgun muzzle almost touching his skin. He was also shot with a 

handgun. Brown was shot twice with a shotgun and twice in the 

chest with a handgun. The fatal shot was fired into his heart with

the handgun muzzle pressed against him. Evidence at Wheeler 

Avenue, including blood patterns, bullet holes, and expended 

cartridges, indicated that Armstrong and Brown had been shot in 

the front entrance sally port. Their bodies were dragged through 

the house into the garage.

4 “Although the witness insisted that the photograph of 

Wheeler was of the driver of the victim’s car, she repeatedly 

pointed to Bryant when asked if she saw the person in court. She 

had testified at the preliminary hearing that she had not been 

able to ‘get a good i.d.’ of the driver, and did not identify any 

defendant as the driver at those earlier proceedings.”
9

“James Williams, a Bryant Family employee, was present 

at Wheeler Avenue before and during the crimes. He started 

working for the Family at the beginning of April 1988 and 

initially worked at Bryant’s pool hall. His primary duty was to 

tell cocaine purchasers where to go to acquire drugs. Williams 

was quickly promoted to working at the Wheeler Avenue ‘count 

house.’ There, money from drug sales was counted and bundled. 

Family employees came to the house to pick up their weekly pay. 

People wishing to purchase larger quantities of cocaine would 

also arrange purchases at Wheeler Avenue.

“Williams, defendant Wheeler, and Lamont Gillon normally 

worked daily staggered eight-hour shifts at the count house. A 

fourth employee, Anthony Arceneaux, would fill in for the other 

three on their days off. Bryant, who was referred to as ‘Chief,’

regularly visited and gave Williams directions. Williams knew 

defendant Smith worked for the Family because he picked up his 

weekly pay at the house. Williams did not know Smith’s role in 

the organization.

“On the day of the murders Williams was working when 

Bryant arrived around 2:00 p.m. At some point, Bryant had 

Williams contact Arceneaux and tell him not to come to work. 

Bryant moved money along with counting and adding machines, 

normally kept in the house, into the garage. He also carried a 

heavy duffle bag from the garage into a back bedroom. Later, 

Wheeler and Smith arrived and joined Bryant in the back room. 

It was unusual for Wheeler and Smith to be there on a Sunday 

afternoon. Bryant also remarked several times that ‘Johnny’ was 

late. Subsequently, codefendant Jon Settle, whom Williams had 

never seen at the house before, arrived and went into the back 

room also.
10

“Sometime later, Williams heard a gunshot from the rear of 

the house. Bryant emerged and asked how loud a noise the shot 

had made. Later, Settle came out, chambered a shotgun round, 

and returned to the bedroom. Eventually, Bryant, Smith, and 

Wheeler came to the front room. Bryant said they were expecting 

some people and told Williams what to do when they arrived. 

After they entered the sally port, Williams was to release the 

electronic lock on the outside door so Bryant could leave. When 

he had done so, Williams was to go out through the garage to a 

green car parked in the driveway and back it into the garage. He 

would then walk to a nearby bus stop, watching to see if any 

neighbors were looking.

“Eventually, Williams saw two strangers approach. After 

they entered the sally port, Williams unlocked the outer gate so 

Bryant could leave. As Williams walked back toward the garage, 

he heard gunshots and screams. While backing the green car 

inside, he saw Wheeler outside with a shotgun. Wheeler 

approached a car parked at the curb and Williams heard glass 

breaking. After parking the green car Williams saw Bryant in the 

garage. Bryant told him to leave. While walking to the bus stop, 

he saw Wheeler driving the car that had been parked in front of 

the house. Bryant drove away in his own car. Smith and Settle 

left in the green car. Bryant later called Williams and told him 

not to go back to the house and not to talk about what had 

happened.

“Several days later, a Family employee told Williams he 

had been identified. Williams was told to leave Los Angeles; the 

Family would cover his expenses. He went to Pennsylvania and 

received a $500 wire transfer from a Family employee. 
11

Eventually arrested in Harrisburg, he gave several statements 

about the shootings in exchange for immunity.

“Bryant’s and Wheeler’s fingerprints were found in the 

Wheeler Avenue house. Bryant’s prints were found on a portable 

telephone and on the page of an address book containing an entry 

for the alias victim James Brown was using. Expended cartridges 

from three different shotguns were found at the house. An 

expended .45-caliber casing was also found in a trash can. It had 

been fired from a handgun later recovered in Bryant’s house.

“The day after the shootings, Bryant and Wheeler visited 

Jeff at Donovan State Prison.

“Six days after the murders, Bryant bought a new car using 

the name of a Family employee. He traded in his relatively new 

car, which matched the description of the one Williams said 

Bryant had driven to Wheeler Avenue. Examination of the tradein yielded positive presumptive tests for the presence of blood at 

the driver’s feet.

“Bryant told Ladell Player, a drug dealer supplied by the 

Family, that the police had been at Wheeler Avenue because ‘we 

had some problems, but we took care of them.’ Bryant also told 

Alonzo Smith that, in essence, Brown ‘had to go.’

“On September 25, 1988, police officers searched the 

apartment of Wheeler’s girlfriend, and found a handgun 

consistent with the one used to shoot Loretha Anderson and her 

daughter. They also recovered two newspaper articles related to 

the murders, and $ 7,650 in cash hidden in the ceiling.

“On September 29, 1988, police searched Bryant’s house. 

They found numerous items related to Family business, the 

handgun that had fired the expended cartridge found at Wheeler 
12

Avenue, several keys to that house, and papers with telephone 

numbers for James Brown and relatives of Andre Armstrong.

“Extensive telephone records suggested the following. 

Bryant and Smith talked to Armstrong or his relatives after he 

was released from prison. Before the murders Bryant and Smith 

exchanged numerous phone calls, Bryant and Wheeler called 

each other repeatedly, and each defendant made several calls to 

Wheeler Avenue.

“In an effort to establish an apparent additional motive for 

Bryant to murder Andre Armstrong, and to further tie Smith to 

the murders, the prosecution introduced evidence of two attacks 

on one Keith Curry. When attacked, Curry, like victim Andre 

Armstrong, had been involved in an intimate relationship with 

Bryant’s ex-wife Tannis. He also was friendly with defendant 

Smith. The prosecution asserted that Bryant was jealous of 

Armstrong’s affair. Because Smith and Armstrong were friends, 

Smith’s presence at Wheeler Avenue was designed to place 

Armstrong at ease before the shooting.

“Curry testified that he began dating Tannis when her 

relationship with Bryant was unstable. Tannis moved into an 

apartment where Curry typically spent three or four nights a 

week. On the morning of March 16, 1986, Curry left the 

apartment and his car exploded. A bomb was triggered by the 

car’s movement. Curry was slightly injured. Tannis told an 

acquaintance that Bryant said he put the bomb in Curry’s car 

and ‘would do it again . . . until [Curry] was dead.’

“Tannis divorced Bryant and married Curry. One evening 

Smith and Curry were engaged in small talk when Smith 

suddenly shot Curry in the neck, paralyzing him. Smith was 

arrested later that night and police found a revolver and what 
13

appeared to be rock cocaine packaged for sale in his car. He was 

later released on bail after several properties connected to the 

Family were posted as security.

“3. Wheeler’s Evidence

“Wheeler testified he joined the Family in early 1988. He 

began selling drugs for Eddie Barber, who ran a semiautonomous 

‘crew.’ Later, at Barber’s direction, Wheeler started working at 

Wheeler Avenue. James Williams ran Wheeler Avenue, and 

served as an ‘enforcer.’

“On the day of the murders, Wheeler completed his shift at 

7:00 a.m. then spent the day with his girlfriend visiting their 

families in Los Angeles. At 3:00 that afternoon and again at 10:45 

that evening, he received a page. In response, Wheeler called 

Williams who told him not to come to work.

“Eddie Barber had previously instructed Wheeler to visit 

Jeff in prison the next day to report about drug operations. 

Wheeler was unaware of the shootings until he heard about them 

from Bryant, who was also visiting Jeff. If Wheeler had been 

involved in the murders he would not have visited Jeff the next 

day because doing so would have connected Jeff to the murders. 

If he had been involved, he would have fled, using money he had 

saved from his drug dealing.

“All Wheeler knew about Bryant’s role in the Family was 

he arranged bail when members were arrested. He had not met 

codefendant Jon Settle before court proceedings began.

“Wheeler’s girlfriend testified that she did not specifically 

remember what she and Wheeler did on the day of the shootings; 

they customarily visited family on Sundays.
14

“4. Smith’s Evidence

“Smith offered no evidence at the guilt phase of the trial.

“5. Bryant’s Evidence

“Bryant testified. While admitting his involvement in the 

drug business, he denied or attempted to refute evidence 

connecting him to the murders. He claimed he worked for his 

brother until Jeff went to prison. Bryant then turned the drug 

business over to William Settle, who was running things when 

the murders occurred. William Settle was the brother of 

codefendant Jon Settle. Bryant was never in charge. William 

Settle paid Bryant for the use of his pool hall in connection with 

the drug business. Bryant also worked at Wheeler Avenue 

counting money. He ‘probably’ had been there every day in 1988. 

However, he was not there the day of the murders and never 

subsequently returned. He had never been there with Williams. 

Bryant’s activities were all done at someone else’s direction.

“Bryant did not arrange a meeting with Armstrong at 

Wheeler Avenue. He spent most of the day of the murders at 

home. He denied that he drove a car like the one seen leaving the 

house. He never spoke with Ladell Player about what had 

happened at the house. He visited Jeff in prison the day after the 

murders to get advice about how to end his association with 

William Settle.

“Bryant was uninvolved with the attacks on Kenneth 

Gentry, Reynard Goldman, and Keith Curry. He did not know 

Gentry, and did not hire Armstrong to kill him. After they were 

arrested for the Gentry murder, Armstrong told Bryant he shot

Gentry because they had both been dating the same woman. 

Armstrong had decided to preemptively kill Gentry before Gentry 
15

acted against him. Bryant had not threatened Reynard Goldman 

about any drug debt. He denied knowing anything about the 

attempts to bribe witnesses in the Gentry and Goldman 

shootings. He had nothing to do with the car bombing of Keith 

Curry, and never told Tannis that he wanted to kill him.

“Through the testimony of investigating officers, Bryant 

presented various inconsistencies between James Williams’s 

statements to the police and his testimony at trial.

“6. Codefendant Settle’s Evidence

“Codefendant Settle testified and presented other evidence 

that he was an automobile mechanic and was only peripherally 

connected to the Family drug business through his brothers 

William and Frank. He did not participate in the murders, but 

did sell Bryant a green 1970 Pontiac Bonneville on the day of the 

shootings. According to Settle, defendant Wheeler drove Settle’s 

brother Frank to pay for the Bonneville and to pick up another 

car Settle had repaired for Bryant. Frank later told Settle that 

the Bonneville had been used in the murders.” (Bryant, Smith, 

and Wheeler, supra, 60 Cal.4th at pp. 352-360.)

DISCUSSION

I. Governing Law

The Legislature enacted Senate Bill 1437 (SB 1437) “to 

amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, 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, subd. (f); 
16

accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959 

(Lewis).) Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775) 

expanded SB 1437 to include convictions for attempted murder 

under the natural and probable consequences doctrine. (Stats. 

2021, ch. 551.)

SB 1437 also added section 1170.95 to the Penal Code 

which, as mentioned above, was later renumbered to section 

1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This 

section permits individuals who were convicted of felony murder

or murder under the natural and probable consequences doctrine,

but who could not be convicted of murder following SB 1437’s 

changes to sections 188 and 189, to petition the sentencing court 

to vacate the conviction and resentence on any remaining counts. 

(§ 1172.6, subd. (a).) It likewise permits individuals who were 

convicted of attempted murder under the natural and probable 

consequences doctrine, but who could not be convicted of 

attempted murder under current law, to petition the sentencing 

court for relief. (Ibid.) It also provides relief for certain 

individuals convicted of murder or attempted murder under any 

“other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime.” (Ibid.)

A petition for relief under section 1172.6 must include a 

declaration by the petitioner that he or she is eligible for relief 

based on all the requirements of subdivision (a), the superior 

court case number and year of the petitioner’s conviction, and a 

request for appointment of counsel, should the petitioner seek 

appointment. (§ 1172.6, subd. (b)(1).) 

Subdivision (c) of section 1172.6 provides: “Within 60 days 

after service of a petition that meets the requirements set forth in 

subdivision (b), the prosecutor shall file and serve a response. 
17

The petitioner may file and serve a reply within 30 days after the 

prosecutor’s response is served. These deadlines shall be 

extended for good cause. After the parties have had an 

opportunity to submit briefings, the court shall hold a hearing to 

determine whether the petitioner has made a prima facie case for 

relief. If the petitioner makes a prima facie showing that the 

petitioner is entitled to relief, the court shall issue an order to 

show cause. If the court declines to make an order to show cause, 

it shall provide a statement fully setting forth its reasons for 

doing so.” 

If the trial court determines the petitioner has made a 

prima facie showing for relief and issues an order to show cause, 

the court must hold a hearing “to determine whether to vacate 

the murder [and] attempted murder . . . conviction[s] and to 

recall the sentence and resentence the petitioner on any 

remaining counts in the same manner as if the petitioner had not 

previously been sentenced, provided that the new sentence, if 

any, is not greater than the initial sentence.” (§ 1172.6, subd. 

(d)(1).) At the hearing, the parties may rely on the record of 

conviction or present “new or additional evidence” to support 

their positions, and “the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder under 

California law as amended by the changes to Section 188 or 189 

made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) 

II. Analysis

As discussed in greater detail below, because the record

demonstrates Smith is ineligible for relief as a matter of law on 

his first degree murder convictions, we reject his contention that 

the trial court erred by denying relief on those counts. 
18

A. Background

In 2017, Smith filed a capital habeas corpus petition in the 

California Supreme Court. In 2019, the Supreme Court

transferred the matter to the trial court. The original trial judge 

was no longer on the court, so the matter was assigned to a 

different judge.

In 2020, the trial court requested supplemental briefing 

addressing whether SB 1437 affected Smith’s second degree 

murder convictions. Smith filed a pro se section 1172.6 petition 

requesting appointment of counsel. Smith’s attorney later filed a 

supplemental petition for resentencing. In the supplemental 

petition, counsel argued Smith was eligible for relief on his 

second degree and first degree murder convictions. In its 

response, the prosecution conceded Smith had made a prima facie 

showing for relief on the second degree murder convictions and 

agreed that on those counts, the court should issue an order to 

show cause and hold an evidentiary hearing. The prosecution 

argued that, with respect to the first degree murder counts, the 

record demonstrated as a matter of law that Smith was convicted 

under the theory that he harbored the intent to kill.

In 2021, the trial court issued an order to show cause why 

relief should not be granted on the second degree murder 

convictions. Later, after the passage of SB 775, the trial court 

granted Smith’s request to include a challenge to his attempted 

murder conviction in his resentencing petition.

At the outset of the evidentiary hearing, held in 2022, the 

trial court stated:

I did issue an order to show cause in this matter back 

in the day, a little bit before some of the law was 

clarified.
19

I thought that based on my reading of the record that 

the order to show cause would only apply to counts 

one and two [the second degree murder counts] and 

then with the changes in the law count five [the 

attempted murder count] as well.

I’m not sure that the law allows at this point the 

excising out of counts two and three or three and 

four, but we can deal with that I suppose.[

5]

The evidentiary hearing focused solely on the second degree 

murder and attempted murder convictions. During argument, 

defense counsel suggested Smith’s first degree murder 

convictions did not fall within SB 1437. The trial court 

responded:

I think everything’s the subject of the 1437 petition. 

At this point I don’t know the way they attach it 

allows me to parse it out that way, but I think in 

terms of whether there’s going to be relief granted 

that there’s not going to be relief to those two counts.

Defense counsel stated, “Okay. And that says it better. I 

don’t want to unduly submit on something.” He then clarified:

“For the record, I’ll say I’m contesting all of the counts under [SB] 

1437 but the emphasis of my argument is the [second degree] [ ] 

murders [ ] and the attempted murder.”

The trial court later issued a written order granting relief 

on the second degree murder and attempted murder convictions 

5 It appears the trial court was unsure whether, because it 

was proceeding to an evidentiary hearing on some of the counts, 

it was therefore required to proceed to an evidentiary hearing on 

all counts.
20

but denying relief on the first degree murder convictions. The 

court addressed the first degree murder convictions in a footnote, 

stating:

[ ] Smith’s legal liability for the first degree murders 

of Andre Armstrong and James Brown, as alleged in 

Counts Three and Four, is not in issue here. The 

parties agree on this.

The evidence is overwhelming that Smith had acted 

as “muscle” for the Bryant “Family” in the past, that 

he was present and joined in the backroom meeting 

where the shootings of those two men were 

presumably discussed and planned and had had 

numerous communications with codefendant Bryant 

during the days leading up to the murders and the 

period shortly after the murders. Whether [ ] Smith

personally fired any of the fatal shots is debatable 

but there is no question that as at least an actual 

aider and abettor to those murders he knew of the 

crimes that codefendants Bryant and Wheeler 

intended to commit, was aware of their murderous 

intent, and assisted in the commission of those 

crimes. (People v. McCoy (2001) 25 Cal.4[th] 1111, 

1117.) As a direct aider and abettor, he is criminally 

liable for the acts for which each of those elements is 

present. (Pen. Code § 31, People v. Bryant, Smith and 

Wheeler, supra 60 Cal.4[th] 335, 433-434.) Those acts 

clearly encompass [ ] the murders of Armstrong and 

Brown. The jury so found in convicting [ ] Smith of 

first degree willful, deliberate, and premeditated 

murders as to those victims. Derivative liability 
21

based on direct aiding and abetting survived the 

changes in the law resulting from 2018 Senate Bill 

1437 and 2021 Senate Bill 775 because it maintains 

the requirement that the defendant personally 

harbor the mental state of malice aforethought. 

(People v. Nguyen (2020) 53 Cal.App.5[th] 1154, 1164; 

People v. Offley (2020) 48 Cal.App.5[th] 588, 596.) [ ]

Smith appears to agree with this analysis and 

conceded that an order to show cause should only be 

issued on the second degree murder counts (Counts 

One and Two) and the attempted murder count, 

Count Five.[6]

The same day the court issued its written order resolving 

Smith’s petition, the court also issued a limited order to show 

cause why Smith’s habeas corpus petition to recall and vacate his 

death sentence on the first degree murder counts (counts three

and four) should not be granted and a new sentencing hearing 

ordered, including a new penalty phase trial should the 

prosecution decide to seek the death penalty. 

The hearing on the order to show cause was held on March 

24, 2022. The prosecution agreed that the trial court had the 

authority to recall and vacate the remaining death sentences and 

resentence Smith on the first degree murder convictions. The 

court vacated the judgment of death on those convictions, and the 

prosecution elected not to retry the penalty phase. The court set a 

sentencing hearing at which the only issues would be whether 

6 At later hearings, Smith’s attorneys challenged the trial 

court’s statement that this issue had been conceded, and clarified 

for the record they believed Smith was eligible for relief on all 

counts. 
22

the life sentences on the first degree murder convictions would be 

with or without the possibility of parole and whether the 

sentences would run concurrently or consecutively.

In April 2022, the court sentenced Smith to consecutive 

terms of life without the possibility of parole. In May 2022, the 

court denied the guilt phase claims in Smith’s petition for writ of 

habeas corpus and dismissed the penalty phase claims as moot. 

B. Analysis

Smith argues the trial court erred by concluding he was 

ineligible for relief as a matter of law on the first degree murder 

convictions, and contends the case must be remanded for an 

evidentiary hearing on one of those counts (count four). We are 

not persuaded.

It is true, as Smith points out, that the jury was instructed 

on the natural and probable consequences doctrine. First, the 

court instructed the jury on aiding and abetting liability using 

CALJIC No. 3.01. That instruction stated, in pertinent part:

A person aids and abets the [commission] [or] 

[attempted commission] of a crime when he or she,

(1) with knowledge of the unlawful purpose of the 

perpetrator and

(2) with the intent or purpose of committing, 

encouraging, or facilitating the commission of the 

crime, by act or advice aids, promotes, encourages or 

instigates the commission of the crime.

Then, in addition to instructing the jury on actual malice murder, 

the court instructed the jury on the natural and probable 

consequences doctrine using CALJIC No. 3.02. That instruction 

provided: 
23

One who aids and abets another in the commission of 

a crime or crimes is not only guilty of that crime, or 

those crimes, but is also guilty of any other crime 

committed by a principal which is a natural and 

probable consequence of the crime or crimes 

originally aided and abetted.

In order to find a defendant guilty of a crime under 

this theory, you must be satisfied beyond a 

reasonable doubt that:

1. The crime of murder was committed

2. The defendant aided and abetted such murder,

3. Thereafter, a co-principal in such crime committed 

additional charged murders, and

4. Those additional murders were a natural and 

probable consequence of the commission of the 

murder or murders which the defendant initially 

aided and abetted.

Smith argues that, because the jury was instructed on the 

natural and probable consequences doctrine, it is possible the 

jury convicted him of the murder of James Brown under this 

imputed-malice theory, and consequently, the record does not 

demonstrate ineligibility as a matter of law on count four. 

Although it is theoretically true these instructions left open 

the possibility that the jury could convict Smith on count four 

under the natural and probable consequences doctrine, the 

record, viewed as a whole, demonstrates Smith is ineligible for 

relief as a matter of law on that count. A review of closing 

arguments reveals that, in regard to the murder of Brown, the 

prosecution did not argue Smith was guilty under the natural 

and probable consequences doctrine. Rather, the prosecution’s 
24

sole theory concerning the murder of Brown was that Smith 

harbored the express intent to kill. The prosecution summarized 

its theory as follows: “[Y]ou have Don Smith, Johnny Settle, 

Leroy Wheeler and Stan Bryant going in the back room of that 

house, going back there and planning what is to occur, bringing 

guns to the crime scene and bringing gloves to the crime scene, 

laying out a plan to lure Andre Armstrong and James Brown over 

there to kill them . . . .” The prosecution’s closing argument thus

makes clear that the only theory of murder liability it presented 

to the jury was that Smith harbored the express intent to kill 

Brown. Because this was the only theory presented to the jury, 

the jury necessarily convicted Smith on that theory, not under 

the natural and probable consequences doctrine. In other words, 

the record demonstrates the jury found Smith guilty beyond a 

reasonable doubt of murdering Brown under current law. (See

generally §§ 187, subd. (a), 188, subd. (a)(1) [express malice is a 

valid theory of murder liability under current law].) He is 

therefore ineligible for relief as a matter of law on count four.

Although Smith does not argue on appeal that he is 

entitled to an evidentiary hearing on count three (the murder of 

Armstrong), for purposes of clarity, we note that he is not entitled 

to an evidentiary hearing on that count for the same reason is he 

not entitled to one on count four – the record demonstrates the 

sole theory presented to the jury on both of those counts was that 

Smith was guilty of murder because he harbored the intent to 

kill. Additionally, because the record demonstrates Smith is 

ineligible for relief as a matter of law on counts three and four, 

we need not address his argument that the trial court engaged in 

improper factfinding on those counts.
25

Lastly, we have considered the Supreme Court’s recent 

decision in People v. Curiel (2023) 15 Cal.5th 433 (Curiel) and 

how it might impact Smith’s case. Nothing about Curiel alters 

our conclusion that, here, the record demonstrates Smith is 

ineligible for relief as a matter of law on counts three and four. 

Whereas the prosecution in Curiel argued to the jury that Curiel 

was guilty of murder under the natural and probable 

consequences doctrine (id. at p. 445), here, as explained above, 

the sole theory the prosecution presented to the jury on counts 

three and four was that Smith was guilty of murder because he 

harbored the intent to kill. Because the jury convicted Smith on 

counts three and four under this theory, not under the natural 

and probable consequences doctrine, Smith is ineligible for relief 

as a matter of law on those counts. Curiel is therefore of no 

assistance to Smith.
26

DISPOSITION

The order denying Smith section 1172.6 relief on his first 

degree murder convictions is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.

We concur: 

COLLINS, J.

MORI, J.