Filed 8/18/22 P. v. Matthews CA2/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALD MATTHEWS,

Defendant and Appellant.

 B299219

 (Los Angeles County

 Super. Ct. No. A367138)

APPEAL from an order of the Superior Court of 

Los Angeles County, Ronald S. Coen, Judge. Reversed. 

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General, Susan 

Sullivan Pithey, Assistant Attorney General, David E. Madeo, 

Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for 

Plaintiff and Respondent.
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____________________________

In 1981, petitioner and appellant Donald Matthews pleaded 

guilty to one count of murder, and the trial court sentenced him 

to 15 years to life. In 2019, petitioner filed a petition for 

resentencing pursuant to Penal Code section 1170.95, which is 

now Penal Code section 1172.6 (section 1172.6). Section 1172.6

allows a petitioner to obtain retroactive relief based on recent 

changes in the murder law. The resentencing court denied 

Matthews’ petition at the prima facie stage and, in July 2020,

this court affirmed the resentencing court’s order. 

Subsequently, our Supreme Court vacated our opinion and 

remanded the case. We now reverse the resentencing court’s 

order denying Matthews’ petition at the prima facie stage. We 

reverse because the record of conviction does not foreclose the 

conclusion that Matthews could have pleaded guilty to murder on 

a theory that he aided and abetted an assault with a firearm, the 

natural and probable consequences of which was murder. 

BACKGROUND

Our record does not include the information or abstract of 

judgment. 

1. Preliminary Hearing

Counsel represented petitioner at a preliminary hearing in 

April 1981. Police Officer William Holcomb testified that he 

interviewed petitioner in Louisiana. Petitioner told Holcomb that 

a month earlier on March 16, petitioner observed two of his 

friends, whose monikers were Snipper and Mugga, with a 

.12-gauge shotgun. When Mugga told petitioner that they were 

going to “bust on some Six-Deuces,” petitioner volunteered to 

drive them. Petitioner “then stated that himself along with 
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several of his friends entered a car that he had stolen the day 

prior and drove around the area of 60th and San Pedro looking 

for some Six-Deuces to shoot.” When his friends exited the car to 

shoot the Six-Deuces, petitioner “remained at the location with 

the doors open and the engine running . . . so that they could 

make a fast getaway.” After the shooting, petitioner drove his 

friends home. Officer Holcomb did not define “bust on,” and no 

other witness at the preliminary hearing testified as to the 

meaning of that term. 

2. Plea and Sentence

Petitioner pleaded guilty to murder in violation of Penal 

Code section 187. Defense counsel and the prosecutor stipulated 

that the murder was in the second degree. At the plea hearing, 

petitioner described the murder as follows: Knowing their 

purpose to shoot Andre Purnell, petitioner drove Robin and 

Donnie Henning to Purnell. Petitioner “drove the car with that 

in mind,” that being “their purpose in going over to shoot Andre 

Purnell.” Petitioner knew that the Hennings had a shotgun in 

the car with them. Petitioner waited in the car during the 

shooting and then drove away. 

At the hearing in which petitioner pleaded guilty, defense 

counsel stated: “He’s 19. But he was not the shooter, and he 

openly admits it. He admitted it to the officers when they picked 

him up down in Louisiana. He’s been no problem. He’s admitted 

it at all times.” The prosecutor recommended that petitioner be 

sent to Youth Authority for a “diagnostic study” and did not 

object to petitioner serving his sentence at the Youth Authority. 

The prosecutor further represented that to his knowledge 

petitioner had “no prior convictions of any felonies or prior 

convictions of violent crimes.” 
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Defense counsel represented that both he and the 

prosecutor believed the Youth Authority would accept petitioner. 

Defense counsel represented that the shooter was 14 years old 

and sentenced as a juvenile. Defense counsel later represented 

that after serving 18 months, the shooter was released from 

Youth Authority. 

Youth Authority denied petitioner admission because it 

lacked adequate facilities. The trial court indicated that “but for 

the lack of beds they would have taken him . . . .” The trial court 

stated: “To make the record perfectly clear, just from my 

experience, several people that have been sent to Youth 

Authority have been sent back with this same inadequate facility 

letter. I think that is a sad state of affairs . . . .” The trial court 

sentenced petitioner to 15 years to life. 

3. Petition for Resentencing

On April 17, 2019, petitioner filed a petition for 

resentencing pursuant to section 1170.95 (now § 1172.6). In his 

petition, petitioner described his offense as follows: “On March 

16, 1981, gang members of the Six Deuce Crips were at the 

corner of 61st Street and San Pedro Avenue. Rival gang 

members of the Five Deuce Crips drove by that corner and 

parked nearby. The Hennings and Jessie Owens got out of the 

car driven by 19-year-old Petitioner who remained in the car as 

the getaway driver.” Petitioner’s confederates killed one person 

and seriously wounded another. 

Petitioner attached his declaration stating that an 

information was filed against him that allowed the prosecution to 

proceed under the felony murder rule or the natural and probable 

consequences doctrine. Petitioner stated, “I did not, with the 

intent to kill, aided, abetted, counseled, commanded, induced, 
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solicited, requested, or assisted the actual killer in the 

commission of murder in the first-degree.” Petitioner declared 

that he was eligible for resentencing. Petitioner requested the 

appointment of counsel. 

4. The Resentencing Court Denied the Petition for

Resentencing

After reviewing the preliminary hearing transcript and 

plea colloquy, the resentencing court concluded that petitioner 

was not eligible for resentencing. The resentencing court denied 

the petition without appointing counsel or holding a hearing. 

The court relied on petitioner’s admissions as recounted at the 

preliminary hearing. The court also relied on petitioner’s 

statements during the plea colloquy. The court explained: 

“Based on the record of conviction, there is no evidence of a 

natural and probable consequence theory. By his own admission, 

petitioner acted with express malice.[1] As such, he is not eligible 

for” resentencing. 

DISCUSSION

“[U]ntil recently, when a person aided and abetted a 

nonhomicide crime that then resulted in a murder, the natural 

and probable consequences doctrine allowed him or her to be 

convicted of murder without personally possessing malice 

aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845 

1 Express malice requires an intent to kill. (People v. Soto

(2018) 4 Cal.5th 968, 970.) Implied malice involves “ ‘ “a 

conscious disregard for the danger to life that the [defendant’s] 

act poses.” ’ [Citation.]” (People v. Offley (2020) 48 Cal.App.5th 

588, 598 (Offley).)
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(Gentile).) Under the natural and probable consequences 

doctrine, “an accomplice is guilty not only of the offense he or she 

directly aided or abetted (i.e., the target offense), but also of any 

other offense committed by the direct perpetrator that was the 

‘natural and probable consequence’ of the crime the accomplice 

aided and abetted (i.e., the nontarget offense).” (Id. at p. 843.) In 

the case of a homicide, then, “[s]o long as the direct perpetrator 

possessed malice, and the killing was a natural and probable 

consequence of the crime the defendant aided and abetted,” the 

defendant is culpable for murder regardless of “whether the 

defendant intended to kill or acted with conscious disregard for 

human life.” (Id. at p. 845.) 

“Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 

No. 1437) amended section 188 to provide that ‘[e]xcept as stated 

in subdivision (e) of Section 189, 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.’ (Stats. 2018, ch. 1015, § 2.) The 

amendment effectively ‘eliminates natural and probable 

consequences liability for first and second degree murder.’ 

[Citation.]” (People v. Garrison (2021) 73 Cal.App.5th 735, 742.)

Senate Bill No. 1437 also enacted section 1170.95, which 

provides a procedure by which a person convicted of murder 

under a theory invalidated under Senate Bill No. 1437, including 

the natural and probable consequences doctrine, may petition to 

vacate the conviction. (Gentile, supra, 10 Cal.5th at p. 843; 

§ 1170.95, subd. (a)(3).) Senate Bill No. 775 (2021–2022 Reg. 

Sess.) (Senate Bill No. 775) amended 1170.95 effective January 1, 

2022 to expand its reach to defendants convicted of attempted 

murder and manslaughter. (§ 1170.95, subd. (a); Stats. 2021, 
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ch. 551, § 2.) Effective June 30, 2022, the Legislature

renumbered the code section. 

Upon receipt of a complying petition under section 1172.6, 

the trial court must appoint counsel, allow briefing, and then 

determine if the petitioner has made a prima facie showing that, 

inter alia, “[t]he petitioner could not presently be convicted of 

murder or attempted murder” under the amendments to the 

Penal Code enacted under Senate Bill No. 1437. (§ 1172.6,

subd. (a)(3).) In making the prima facie determination, the trial 

court must “ ‘ “take[ ] [the] petitioner’s factual allegations as true 

and make[ ] a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual 

allegations were proved. . . .” ’ [Citation.]” (People v. Lewis

(2021) 11 Cal.5th 952, 971 (Lewis).) “ ‘[A] court should not reject 

the petitioner’s factual allegations on credibility grounds without 

first conducting an evidentiary hearing.’ [Citation.]” (Ibid.) The 

court may rely on the record of conviction in making the prima 

facie determination, however, and “ ‘if the record, including the 

court’s own documents, “contain[s] facts refuting the allegations 

made in the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.” ’ [Citation.]” 

(Ibid.)

An error in failing to appoint counsel at the prima facie 

stage should be evaluated for prejudice under the Watson2

standard. (Lewis, supra, 11 Cal.5th at pp. 973–974.) A petitioner 

“ ‘whose petition is denied before an order to show cause issues 

has the burden of showing “it is reasonably probable that if [he or 

she] had been afforded assistance of counsel his [or her] petition 

2 People v. Watson (1956) 46 Cal.2d 818, 836.
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would not have been summarily denied without an evidentiary

hearing.” ’ [Citation.]” (Id. at p. 974.) A petitioner shows 

prejudice when the record of conviction does not refute his claim 

of eligibility as a matter of law. (People v. Flint (2022) 

75 Cal.App.5th 607, 613.) 

Turning to this case, upon remand, Matthews 

demonstrates that it is reasonably probable if he had been 

afforded the assistance of counsel, his petition would not have 

been summarily denied without a hearing. Specifically, he 

argues that the record does not foreclose the theory that 

petitioner aided and abetted an assault with a firearm, the 

natural and probable consequences of which was murder. Under 

former law, the foregoing theory was viable. (People v. Chiu 

(2014) 59 Cal.4th 155, 161 [under former law, “ ‘if a person aids 

and abets only an intended assault, but a murder results, that 

person may be guilty of that murder, even if unintended, if it is a 

natural and probable consequence of the intended assault.’ ”].) 

The fact that Matthews knew his confederate had a 

shotgun and planned to shoot Purnell does not demonstrate as a 

matter of law that Matthews harbored malice aforethought. (See 

Offley, supra, 48 Cal.App.5th at p. 598.) Offley involved a 

petitioner who was convicted of murder, attempted murder, and 

shooting at an occupied motor vehicle after he and several fellow 

gang members fired shots into a vehicle, killing one occupant and 

seriously wounding another. (Id. at p. 592.) The jury had been 

instructed as follows on the natural and probable consequences 

doctrine in cases of conspiracy: “ ‘A member of a conspiracy is not 

only guilty of the particular crime that to his knowledge his 

confederates agreed to and did commit, but is also liable for the 

natural and probable consequences of any crime of a co–
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conspirator to further the object of the conspiracy, even though 

that crime was not intended as a part of the agreed upon 

objective and even though he was not present at the time of the 

commission of that crime.’ ” (Id. at p. 593.) The prosecutor 

argued to the jury that it could convict on the basis of this 

instruction, stating “that the ‘common design of [the] conspiracy’ 

was ‘assault with a firearm,’ and that any member of the 

conspiracy was ‘guilty of, not only that particular crime, but also 

the natural and probable consequence of any crime of the coconspirator.’ ” (Id. at p. 599.)

We reversed the trial court’s summary denial of petitioner 

Offley’s resentencing petition. We could not “exclude the 

possibility that the jury believed Offley acted without intending 

to kill [the victim] or consciously disregarding that risk. The jury 

might have concluded that Offley intended to take part in a 

conspiracy to commit assault with a firearm, or to fire into an 

occupied vehicle, with the aim of either injuring or merely 

frightening” the victim. (Offley, supra, 48 Cal.App.5th at p. 599.) 

“The jury could have then concluded that [the victim’s] death was 

the natural and probable consequence of the conspiracy and 

convicted him of murder without finding beyond a reasonable 

doubt that he acted with malice aforethought.” (Ibid.)

Similarly, here we cannot exclude the possibility that 

petitioner pleaded guilty because he intended to commit an 

assault with a firearm the natural and probable consequence of 

which was murder. Matthews admitted that he knew his 

confederates would shoot Purnell, but did not admit that he acted 

with malice aforethought (either express or implied). As in 

Offley, petitioner could have intended to commit an assault with 

a firearm with an intent to injure but not kill. For that reason, 
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we reject respondent’s argument that Matthews harbored express 

intent to kill.3 Because petitioner demonstrated he is not 

ineligible for resentencing as a matter of law, the trial court 

prejudicially erred in denying his petition without appointing 

counsel. The trial court was required to issue an order to show 

cause and to hold a hearing at which the prosecution bears the 

“burden of proving petitioner’s ineligibility for resentencing 

beyond a reasonable doubt, unless such hearing is waived

([citation]).” (People v. Flores (2022) 76 Cal.App.5th 974, 992.) 

Finally, respondent correctly points out that courts are 

divided as to whether preliminary hearing testimony may be 

considered to assess a petitioner’s eligibility for resentencing. In 

People v. Davenport (2021) 71 Cal.App.5th 476, 482, the court 

held that a resentencing court cannot rely on evidence testified to 

at a preliminary hearing absent a stipulation that the evidence 

formed a factual basis for a plea. In contrast, People v. Perez

(2020) 54 Cal.App.5th 896, review granted December 9, 2020, 

S265254, held that the preliminary hearing transcript is part of 

the record of conviction and may be considered to assess prima 

facie eligibility. (Id. at pp. 905–907, review granted.) 

Respondent argues that it is unnecessary to rely on the 

preliminary hearing testimony because petitioner’s statements at 

3 Although respondent correctly notes that in our nowvacated opinion, we stated that petitioner offered no basis to 

conclude his conviction was based on the natural and probable 

consequences doctrine. Upon remand from our Supreme Court,

petitioner, now with the assistance of counsel, persuasively 

argues that his conviction potentially could have been based on 

the natural and probable consequences doctrine. 
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the plea “indicate that he acted with express malice, i.e, with ‘a

deliberate intention to take away the life of a fellow creature.’ ”

We agree with respondent to the extent respondent argues 

that petitioner’s admissions forming the factual basis of his plea 

were substantially the same as the evidence presented at the 

preliminary hearing. Specifically, petitioner admitted at his plea 

hearing that he drove two confederates knowing that they 

intended to shoot Purnell. Following petitioner’s testimony, the 

court found there was a “factual basis for the plea of guilty.”

However, we disagree that petitioner admitted he acted with 

express malice. Petitioner testified only that he knew his 

confederates would shoot at rival gang members not that he 

intended to kill the rival gang members. Petitioner’s admissions 

were insufficient to exclude a natural and probable consequences 

theory and the case must be remanded for additional 

proceedings. (§1172.6, subd. (c).) 

DISPOSITION

The order denying Donald Matthews’ petition for 

resentencing is reversed. The case is remanded to the trial court 

to issue an order to show cause and to conduct further 

proceedings as required by Penal Code section 1172.6, 

subdivision (d). 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J. CHANEY, J.