Filed 7/19/21 P. v. Russell CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND JOHN RUSSELL,

Defendant and Appellant.

 B305287

 (Los Angeles County

 Super. Ct. No. BA395919)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Richard S. Kemalyan Judge. Affirmed. 

The Appellate Law Firm and Berangere Allen-Blaine for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Amanda Lopez and Scott A. Taryle, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Raymond Russell, convicted in 2014 of first degree, 

premeditated murder and two counts of attempted willful, 

deliberate and premediated murder, appeals the superior court’s 

order denying his petition for resentencing under Penal Code

section 1170.95.

1 Because the record of conviction indisputably 

established Russell was convicted as a direct aider and abettor of 

murder, acting with express malice (an unlawful intent to kill), a 

theory of accomplice liability for murder that remains valid after 

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

(Stats. 2018, ch. 1015) (Senate Bill 1437), Russell is ineligible for 

resentencing under section 1170.95 as matter of law. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Russell’s Commitment Offense

Russell was charged in an information filed on February 1, 

2012 with one count of murder (§ 187) and two counts of 

attempted willful, deliberate and premeditated murder (§§ 664, 

187) with special allegations as to all three counts that the crimes 

had been committed for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)) and Russell had personally and 

intentionally discharged a firearm causing great bodily injury or 

death or a principal in the offenses had done so (§ 12022.53, 

subds. (b), (c), (d), (e)(1)). Our opinion affirming Russell’s 

convictions described the evidence presented at trial. (People v. 

Russell (Feb. 14, 2017, B258669) [nonpub. opn.].) 

In the early morning of October 16, 2011 Kevin Peary, 

Jonathan Rambo and Keshawn Corbin were standing outside an 

apartment building in a neighborhood claimed by the Crips 

criminal street gang. An SUV stopped in the middle of the street, 

1 Statutory references are to this code.
3

and three men got out. All were wearing hooded sweatshirts 

with the hoods up; each of the men was holding a gun. One of the 

men shouted “Blood” and issued a gang challenge, “Where are 

you from?” Peary responded, “I don’t bang.” “Fuck Naps,” a 

pejorative term for a member of the Rollin 60’s Crips gang, was 

yelled in response. The three men from the SUV then began 

shooting, returned to their vehicle and drove away.

Corbin died from multiple gunshot wounds. Rambo was 

shot twice in the right leg and survived. Peary escaped 

uninjured. Although Peary testified at trial and described the 

events leading to Corbin’s death, he did not identify Russell as 

one of the three armed men involved in the shooting.

Police investigating the shooting found Russell’s cell phone 

at the crime scene. Based on Peary’s description of the SUV (a 

green Chevy Tahoe), it was determined a similar vehicle was 

owned by Russell’s mother. Russell had been issued three traffic 

citations while driving his mother’s SUV in the months prior to 

the shooting. After his arrest, Russell made statements to a 

confidential informant placed in his cell that appeared to 

implicate Russell in the shooting. A recording of the conversation 

between Russell and the informant was played for the jury. 

2. The Jury Instructions

With respect to the charge of murder, the trial court 

instructed the jury with CALCRIM No. 520: “To prove that the 

defendant is guilty of this crime, the People must prove that: [¶]

1. The defendant committed an act that caused the death of 

another person; AND [¶] 2. When the defendant acted, he had a 

state of mind called malice aforethought; AND [¶] 3. He killed 

without lawful excuse or justification. [¶] There are two kinds of 

malice aforethought, express malice and implied malice. Proof of 
4

either is sufficient to establish the state of mind required for 

murder. [¶] The defendant acted with express malice if he 

unlawfully intended to kill. [¶] The defendant acted with implied 

malice if: [¶] 1. He intentionally committed an act; [¶] 2. The 

natural and probable consequences of the act were dangerous to 

human life; [¶] 3. At the time he acted, he knew his act was 

dangerous to human life; AND [¶] 4. [¶] He deliberately acted 

with conscious disregard for human life. [¶] . . . [¶] An act causes 

death if the death is the direct, natural and probable consequence 

of the act and the death would not have happened without the 

act. A natural and probable consequence is one that a reasonable 

person would know is likely to happen if nothing unusual 

intervenes. In deciding whether a consequence is natural and 

probable, consider all the circumstances established by the 

evidence.” 

As to first degree murder, the court instructed in 

accordance with CALCRIM No. 521: “The defendant is guilty of 

first degree murder if the People have proved that he acted 

willfully, deliberately and with premeditation. The defendant 

acted willfully if he intended to kill. The defendant acted 

deliberately if he carefully weighed the considerations for and 

against his choice and, knowing the consequences, decided to kill. 

The defendant acted with premeditation if he decided to kill 

before completing the act[s] that caused death.”

The court also instructed on direct aiding and abetting an 

intended crime using CALCRIM Nos. 400 and 401. As given, 

CALCRIM No. 401 explained, to prove Russell was guilty of 

Corbin’s murder based on aiding and abetting that crime, the 

People had to prove a perpetrator committed the crime; Russell 

knew the perpetrator intended to commit the crime; Russell
5

intended to aid and abet the perpetrator in committing the crime; 

and Russell’s words or conduct in fact aided and abetted the 

perpetrator’s commission of the crime. The instruction 

continued, “Someone aid[s] and abets a crime if he or she knows 

of the perpetrator’s unlawful purpose and he or she specially 

intends to, and does in fact aid, facilitate, promote, encourage, or 

instigate the perpetrator’s commission of that crime.” The jury 

was not instructed on felony murder (CALCRIM Nos. 540A and 

540B); nor was it instructed with CALCRIM Nos. 402, 403 or any 

other instruction on the natural and probable consequences 

doctrine as it relates to aiding and abetting. 

3. Verdict, Sentence and Appeal

The jury convicted Russell of first degree murder and both 

counts of attempted willful, deliberate and premeditated murder 

and found true the special allegations the offenses had been 

committed for the benefit of a criminal street gang. As to the 

murder count and one of the two attempted murder counts, the 

jury found true the allegations a principal had discharged a 

firearm causing death or great bodily injury. As to the second 

attempted murder count, the jury found true that a principal had 

discharged a firearm. The trial court sentenced Russell to an 

aggregate indeterminate state prison sentence of 105 years to life 

plus a determinate term of 20 years.

We affirmed Russell’s convictions on appeal, rejecting his 

contentions the trial court had erred in denying his BatsonWheeler motions and admitting a gang expert’s opinion testimony 

based on hearsay and the prosecutor had engaged in misconduct 

during closing argument. We struck as unauthorized the 10-year 

gang enhancements imposed and stayed on each count pursuant 

to section 186.22, subdivision (b)(1)(C), and the minimum parole 
6

eligibility of 15 years imposed pursuant to section 186.22, 

subdivision (b)(5).

4. Russell’s Section 1170.95 Petition

On February 25, 2019 Russell, representing himself, filed a 

petition for resentencing under section 1170.95 and requested the 

court appoint counsel to represent him in the resentencing 

proceedings. Russell checked several boxes on the printed form 

petition purporting to establish his eligibility for resentencing 

relief, including the box stating at trial he had been convicted of 

murder pursuant to the felony-murder rule or the natural and 

probable consequences doctrine and could not now be convicted of 

first or second degree murder because of changes made to 

sections 188 and 189 by Senate Bill 1437. He also checked 

additional boxes applicable only to a petitioner who had been 

convicted of felony murder.

The District Attorney filed two memoranda in opposition to 

the petition on April 10, 2019, one contending Senate Bill 1437 

and section 1170.95 were unconstitutional and the second

arguing Russell was ineligible for resentencing relief because his 

conviction was based on the theory he was a direct aider and 

abettor of the murder who had acted with an express intent to 

kill, not the felony-murder rule (noting there was no underlying 

serious felony enumerated in section 189, subdivision (a)), or the 

natural and probable consequences doctrine (explaining there 

was no target offense). Among other exhibits, the second 

memorandum attached a copy of this court’s opinion affirming 

Russell’s convictions. 

The court appointed counsel to represent Russell on 

April 29, 2019 (the same counsel who had represented Russell at 

trial) and gave Russell 30 days to reply to the District Attorney’s 
7

opposition papers. The District Attorney filed a supplemental 

response in opposition on November 19, 2019, which attached the

jury instructions given at Russell’s trial. The prosecutor noted

the jury had not been instructed on the felony-murder rule or the 

natural and probable consequences doctrine. 

Russell, through his counsel, filed a document entitled 

“motion for resentencing” on December 4, 2019, which included a 

memorandum arguing Russell was eligible for resentencing 

because he had been convicted of first degree murder under the 

natural and probable consequences doctrine. The memorandum 

emphasized the language in CALCRIM No. 520 explaining, “[a]n 

act causes death if the death is the direct, natural, and probable 

consequence of the act and death would not have happened 

without the act.” 

Following argument from counsel at a hearing on 

February 4, 2020, the court (Judge Richard S. Kemalyan) denied 

the motion, finding Russell had failed to make a prima facie

showing he was entitled to relief. Judge Kemalyan, after 

reminding counsel he had presided at the trial and was familiar

with the facts, explained his ruling: “Mr. Russell was convicted 

of first degree murder, not on a felony-murder theory, not on a 

natural and probable consequences theory. There was no target 

offense. It was a murder that was alleged. There was no natural 

and probable consequences jury instruct that was given. The 

instruction given in this matter, 520, was for purposes of the 

determination as to whether this was express or implied malice. 

And of course, the defendant having been convicted of first degree 

murder, the issue of malice becomes fairly obvious. Even 

assuming that there’s some merit to Mr. Russell’s argument, I 
8

don’t think there’s any question that he was a major participant 

in the killing and acted with reckless indifference to human life.” 

Russell filed a timely notice of appeal. 

DISCUSSION

1. Senate Bill 1437 and the Section 1170.95 Petition 

Procedure 

Senate Bill 1437 eliminated the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of 

murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 

(Gentile)) and significantly narrowed the felony-murder exception 

to the malice requirement for murder. (See, e.g., People v. 

Rodriguez (2020) 58 Cal.App.5th 227, 236, review granted 

Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th 

1077, 1080.) It also authorized, through new section 1170.95, an 

individual convicted of felony murder or murder based on the

natural and probable consequences doctrine to petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder because of Senate Bill 1437’s changes to the definition 

of the crime. (See Gentile, at p. 859.) 

If the section 1170.95 petition contains all the required 

information, including a declaration by the petitioner that he or 

she was convicted of murder and is eligible for relief (§ 1170.95, 

subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a 

process for the court to determine whether to issue an order to 

show cause and hold an evidentiary hearing to consider if the 

murder conviction should be vacated and the petitioner 

resentenced on any remaining counts: “The court shall review 

the petition and determine if the petitioner has made a prima 

facie showing that the petitioner falls within the provisions of 
9

this section. If the petitioner has requested counsel, the court 

shall appoint counsel to represent the petitioner. The prosecutor 

shall file and serve a response . . . and the petitioner may file and 

serve a reply . . . . 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.” 

In determining whether the petitioner has carried the 

burden of making the requisite prima facie showing he or she 

falls within the provisions of section 1170.95 and is entitled to 

relief, the superior court properly examines the record of 

conviction and “can dismiss any petition filed by an individual 

who was not actually convicted of first or second degree murder.” 

(People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo), 

review granted Mar. 18, 2020, S260493.) “The record of 

conviction might also include other information that establishes 

the petitioner is ineligible for relief as a matter of law because he 

or she was convicted on a ground that remains valid 

notwithstanding Senate Bill 1437’s amendments to sections 188 

and 189.” (Ibid.) 

As this portion of our decision in Verdugo emphasized, for 

relief to be denied without the court first issuing an order to show 

cause and conducting an evidentiary hearing, the record of 

conviction must establish the petitioner’s ineligibility as a matter 

of law. (Verdugo, supra, 44 Cal.App.5th at p. 330, review 

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

granted July 22, 2020, S262835 [“[i]f 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”]; People v.

Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 
10

2020, S260410 [record must show defendant is “indisputably 

ineligible for relief”].)

If the section 1170.95, subdivision (c), prima facie 

showings have been made, the court must issue an order to show 

cause and hold an evidentiary hearing to determine whether to

vacate the murder conviction and resentence the petitioner on 

any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing 

the prosecution has the burden of proving beyond a reasonable 

doubt that the petitioner is ineligible for resentencing. 

(§ 1170.95, subd. (d)(3); Rodriguez, supra, 58 Cal.App.5th at 

p. 230, review granted; People v. Lopez (2020) 56 Cal.App.5th 

936, 949, review granted Feb. 10, 2021, S265974; but see People 

v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 

2021, S265309.) The prosecutor and petitioner may rely on the 

record of conviction or offer new or additional evidence to meet 

their respective burdens. (See People v. Tarkington (2020) 

49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020, 

S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981; 

People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted 

Mar. 18, 2020, S260598.)

2. Russell Was Not Convicted of Murder Under the Felonymurder Rule or the Natural and Probable Consequences 

Doctrine and Is Not Eligible for Resentencing Relief

Noting the jury did not find he was Corbin’s actual killer

and focusing on the reference to the natural and probable 

consequences of an act in CALCRIM No. 520’s definition of 

implied malice, Russell argues he was convicted under the nowinvalid natural and probable consequences doctrine of accomplice 

liability for murder, not as a direct aider and abettor of Corbin’s 

murder. Accordingly, he contends, the superior court erred in 
11

ruling he had failed to establish a prima facie case of eligibility 

for resentencing relief. Russell’s record of conviction belies that 

contention.

As the Supreme Court explained in Gentile, supra, 

10 Cal.5th at pages 843 to 844, “Our law recognizes two forms of 

liability for aiders and abettors. [Citation.] First under direct 

aiding and abetting principles, an accomplice is guilty of an 

offense perpetrated by another if the accomplice aids the 

commission of that offense with ‘knowledge of the direct 

perpetrator’s unlawful intent and [with] an intent to assist in 

achieving those unlawful ends.’ [Citation.] [¶] Second, under 

the natural and probable consequences doctrine, an accomplice is 

guilty not only of the offense he or she directedly 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). . . . [¶] Unlike direct aiding and abetting 

liability, culpability under the natural and probable consequences 

theory does not require an accomplice to share the direct 

perpetrator’s intent.”

Russell’s jury, instructed only with the elements of 

accomplice culpability based on direct aiding and abetting, found 

Russell guilty of first degree murder. That verdict necessarily 

meant the jury found Corbin’s shooter had acted with express 

malice and Russell, even if he was not the shooter, shared that 

intent while assisting the shooter in committing the murder. As 

such, he was ineligible for resentencing under section 1170.95 as 

a matter of law. (See Verdugo, supra, 44 Cal.App.5th at p. 336, 

review granted [affirming summary denial of section 1170.95 

petition; “our review of the record confirmed that Verdugo’s 
12

conviction for first degree murder was based on a jury finding he 

had aided and abetted Barraza in the commission of that offense 

and had acted with express malice in doing so”].) 

Because the jury found Russell had acted with express 

malice when aiding in Corbin’s murder, Russell’s argument 

regarding the natural and probable consequences language in the 

implied malice instruction is immaterial to a determination of his 

eligibility for resentencing relief. It is also fundamentally 

unsound, as the court of appeal held in People v. Soto (2020) 

51 Cal.App.5th 1043, review granted August 17, 2020, S263939.

Directly addressing the language issue Russell raises, the 

Soto court explained: “Although the instructions related to 

implied malice and the natural and probable consequences 

doctrine of aiding and abetting include similar language 

regarding a ‘natural consequence,’ they are distinctly different 

concepts. Implied malice is a mental state for the commission of 

the crime of second degree murder either by the principal or as 

an aider and abettor (as was the case here for Soto) to 

murder. . . . [¶] The California Supreme Court has made clear 

that a ‘direct’ aider and abettor must—at a minimum—share in 

the mens rea of the actual perpetrator, whereas an ‘indirect’ aider 

and abettor (i.e., one whose liability is premised on the natural 

and probable consequences doctrine) need only intend to aid a 

different, less serious ‘target’ crime, than the consequent crime.” 

(People v. Soto, supra, 51 Cal.App.5th at pp. 1056-1057, review 

granted.) The Soto court continued, “For implied malice murder, 

[the required] intent is that the perpetrator ‘“knows that his 

conduct endangers the life of another and . . . acts with conscious 

disregard for life.”’ [Citation.] The ‘physical component’ required 

for implied malice murder ‘is satisfied by the performance of “an 
13

act, the natural consequences of which are dangerous to life.”’ 

[Citation.] [¶] . . . Unlike aiding and abetting implied malice 

murder, which requires the aider and abettor to (at least) share 

the mental state of the actual perpetrator of implied malice 

murder, ‘“aider and abettor culpability under the natural and 

probable consequences doctrine is not premised upon the 

intention of the aider and abettor to commit the nontarget offense 

[e.g., murder] because the nontarget offense was not intended at 

all.”’” (Id. at p. 1058.) This distinction between the mental state 

required for direct aiding abetting liability and culpability under 

the natural and probable consequences doctrine is critical, the 

Soto court concluded, because relief under section 1170.95 is 

available only to those convicted of murder by operation of the 

natural and probable consequences doctrine or the felony-murder 

rule. “Senate Bill No. 1437 changed the circumstances under 

which a person could be convicted of murder without a showing of 

malice, but it did not exclude from liability persons convicted of 

murder for acting with implied malice.” (Soto, at p. 1057.) 

Soto’s analysis is persuasive, and we decline Russell’s 

invitation to disagree with it. As in Soto, the jury here 

necessarily found Russell guilty of murder based on his own 

actions and mental state as a direct aider and abettor of murder, 

not based on a theory of vicarious liability or imputed malice, the 

subject of Senate Bill 1437. 
14

DISPOSITION

The postjudgment order denying the petition for 

resentencing is affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.