Filed 2/25/21 P. v. Walker CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES WALKER et al.,

Defendants and 

Appellants.

 B305337

 (Los Angeles County

 Super. Ct. No. YA057505)

APPEALS from postjudgment orders of the Superior Court 

of the County of Los Angeles, Edmund Wilcox Clarke, Jr., Judge. 

Reversed and remanded with directions.

Mark D. Lenenberg, under appointment by the Court of 

Appeal, for Defendant and Appellant Charles Walker.

G. Matthew Missakian, under appointment by the Court of 

Appeal, for Defendant and Appellant Gary Holden.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Nicholas J. 
2

Webster, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________________

I. INTRODUCTION

Defendants Charles Walker and Gary Holden appeal from 

the trial court’s orders denying their petitions for resentencing 

under Penal Code section 1170.95.1 According to defendants, the 

court erred by summarily denying their petitions based on its 

finding that they had failed to make the requisite prima facie

showing of entitlement to relief under section 1170.95, 

subdivision (c). We agree and therefore reverse the court’s orders 

and remand with directions.

II. BACKGROUND

A. The Shooting

On January 30, 2004, defendants and another man, C.W.,

confronted the victim, who was waiting at a bus stop in local gang 

territory. An altercation ensued during which the victim was 

first punched and then fatally shot with a handgun. Various 

eyewitnesses, including C.W., described all or parts of the 

shooting.

1 All further statutory references are to the Penal Code.
3

B. The Trial and Murder Convictions

In a one-count information, the District Attorney jointly 

charged defendants with murder in violation of section 187, 

subdivision (a). The District Attorney alleged that Holden 

personally used and discharged a handgun causing the death of 

the victim within the meaning of sections 12022.53, subdivisions 

(b) through (d). The District Attorney also alleged, as to Walker,

that a principal personally used and discharged a handgun 

causing the death of the victim in violation of section 12022.53, 

subdivisions (b) through (e). And, the District Attorney alleged 

that the offense was committed for the benefit of, at the direction 

of, or in association with a criminal street gang with the specific 

intent to promote, further, and assist criminal conduct by gang 

members.

At defendants’ joint trial, the trial court gave, among 

others, instructions on first and second degree murder, direct 

aider and abettor liability, and the natural and probable 

consequences doctrine as it related to the target offense of 

assault. During argument, the prosecutor asserted that Walker 

first punched the victim and Holden then intentionally shot him.

According to the prosecutor, Holden was therefore liable for first 

degree premeditated murder and Walker either knew of Holden’s 

intent, and was therefore liable as a direct aider and abettor of 

that murder, or was liable for second degree murder under the 

natural and probable consequences doctrine based on his assault 

of the victim.

Following trial, the jury found Holden guilty of seconddegree murder and found the gang allegation as to him true, but 

found all of the gun use allegations as to him “false.” The jury 
4

also found Walker guilty of second degree murder, found the gang 

allegation as to him true, and found true the allegations that a 

principal personally used and discharged a handgun causing the 

death of the victim.

The trial court sentenced Holden to 15 years to life on the 

murder count, plus a consecutive 10-year term for the gang 

enhancement, for an aggregate sentence of 25 years to life. The 

court sentenced Walker to 15 years to life on the murder count, 

plus a consecutive 25-year term for the firearm enhancement, for 

an aggregate sentence of 40 years to life.

C. Petitions for Resentencing

On January 9, 2019, Holden filed a petition to recall his 

sentence pursuant to section 1170.95. According to Holden, he 

was entitled to resentencing because he was convicted of murder 

as an aider and abettor under the natural and probable 

consequences doctrine. He also maintained that there was 

insufficient evidence to show that he intentionally planned the 

victim’s murder or otherwise shared in the perpetrator’s intent.

The District Attorney initially opposed the petition solely 

on constitutional grounds, and Holden replied to those 

arguments, including a request for judicial notice.2

On June 21, 2019, Walker filed his petition for 

resentencing, alleging that he was convicted of murder under the 

natural and probable consequences doctrine and requesting 

appointment of counsel.

2 On May 20, 2019, Holden filed a request for appointment of 

counsel.
5

On July 30, 2019, the District Attorney filed a further 

response to Holden’s petition, asserting, in addition to certain 

constitutional grounds, that the record evidence showed that 

Holden, if retried, could be convicted of second degree murder as 

either a direct aider and abettor or as the actual shooter. Holden, 

who was now represented by counsel, filed a reply to the District 

Attorney’s latest submission addressing only the constitutional 

issues, and in a separate submission, he reasserted that there 

was insufficient evidence of his intent to kill and that the jury 

was instructed that he could be convicted of murder under the 

natural and probable consequences doctrine as an aider and 

abettor of assault.

Walker, through counsel, filed a response in support of his 

petition, arguing that because the jury was instructed on the 

natural and probable consequences doctrine with assault as the 

target crime, there was no evidence in the record demonstrating 

as a matter of law that, if retried, he could be convicted of first or 

second degree murder under a currently valid legal theory.

On February 19, 2020, the District Attorney filed a 

supplemental response to Walker’s petition, supported by the 

trial transcripts, arguing that because the jury had been 

instructed concerning Walker’s liability as a direct aider and 

abettor, he could still be convicted of murder if retried under 

current law.

D. Hearing on and Denial of the Petitions

On February 26, 2020, the trial court conducted a hearing 

on defendants’ resentencing petitions. Among other evidence 

from the trial record, the court cited the testimony of C.W. and 
6

another eyewitness to the shooting and reasoned that because 

one of the defendants must have been the shooter, they both 

could be convicted of murder under current law as either the 

actual shooter or as a direct aider and abettor. Following 

argument from counsel, the court denied the petitions based on 

its finding that defendants failed “to make the necessary prima 

facie showing that [they] could not be convicted as a direct aider 

and abettor in this case.”

III. DISCUSSION

A. Senate Bill No. 1437’s Amendments to Sections 188 and 189

and Addition of Section 1170.95

“Through section 1170.95, Senate Bill [No.] 1437 created a 

petitioning process by which a defendant convicted of murder 

under a felony murder theory of liability could petition to have 

his conviction vacated and be resentenced. Section 1170.95

initially requires a court to determine whether a petitioner has 

made a prima facie showing that he or she falls within the 

provisions of the statute as set forth in subdivision (a), including 

that ‘(1) [a] complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to proceed 

under a theory of felony murder or murder under the natural and 

probable consequences doctrine[,] [¶] (2) [t]he petitioner was 

convicted of first degree or second degree murder following a trial 

or accepted a plea offer in lieu of a trial at which the petitioner 

could be convicted for first degree or second degree murder[, and]

[¶] (3) [t]he petitioner could not be convicted of first or second 

degree murder because of changes to [s]ection[s] 188 or 189 made 
7

effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.

Verdugo (2020) 44 Cal.App.5th 320, 327 . . . , review granted 

Mar. 18, 2020, [S260493 (Verdugo)].) If it is clear from the record 

of conviction that the petitioner cannot establish eligibility as a 

matter of law, the trial court may deny the petition. (Verdugo, 

[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination 

of eligibility requires an assessment of the evidence concerning 

the commission of the petitioner’s offense, the trial court must 

appoint counsel and permit the filing of the submissions 

contemplated by section 1170.95. (Verdugo, [supra, 44 

Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th 

[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598].)” 

(People v. Smith (2020) 49 Cal.App.5th 85, 92, review granted 

July 22, 2020, S262835, fn. omitted.) “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).)

B. Analysis

Defendants contend that the trial court erred in concluding 

they had not made a prima facie showing of eligibility for relief. 

Because they alleged facts showing that their second degree 

murder convictions could have been based on the natural and 

probable consequences doctrine, defendants maintain that they 

made the required prima facie showing and therefore that the 

matter must be reversed and remanded with directions to issue 

an order to show cause and hold an evidentiary hearing under 

section 1170.95, subdivision (d).
8

The Attorney General concedes the error and agrees that 

the denials should be reversed and remanded with directions to 

issue an order to show cause and conduct a hearing.

Here, the record affirmatively demonstrated that each 

defendant was charged with murder, that the jury was instructed 

on second degree murder and the natural and probable 

consequences doctrine, and that the jury returned verdicts of 

second degree murder as to each defendant. In light of that 

record, the trial court could not determine at the initial stage of 

the process—as a matter of law and without resort to 

factfinding—that the jury did not base its second degree murder 

findings on the natural and probable consequences doctrine. 

(Verdugo, supra, 44 Cal.App.5th at p. 329 [when evaluating 

section 1170.95 petitioner’s eligibility under subdivision (c), the 

court must make “all factual inferences in favor of the 

petitioner”].) Because the record showed that defendants could 

have been convicted under a theory of murder that was no longer 

viable under the revisions to sections 188 and 189, the court

erred in denying the petitions at this stage in the proceedings. 

Accordingly, the orders denying the petitions must be reversed 

and the matters remanded with directions to issue orders to show 

cause and hold a hearing under section 1170.95, subdivision (d).
9

IV. DISPOSTION

The orders denying defendants’ petitions for resentencing 

under section 1170.95 are reversed and remanded with directions 

to hold further proceedings on those petitions consistent with this 

opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.