Filed 8/30/22 P. v. Crenshaw CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ODELL CRENSHAW,

Defendant and Appellant.

 B312025

 (Los Angeles County

 Super. Ct. No. BA024364)

APPEAL from an order of the Superior Court of 

Los Angeles County, Michael V. Jesic, Judge. Reversed and 

remanded with instructions.

Kevin D. Sheehy, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Daniel Chang and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Appellant Robert O. Crenshaw challenges the denial of his 

petition for resentencing under Penal Code former section 

1170.95 (now § 1172.6).1 Appellant contends the trial court erred 

by denying his petition at the prima facie stage of review because 

the jury instructions and findings upon which the court relied do 

not foreclose relief as a matter of law. Respondent Attorney 

General agrees, as do we. We accordingly reverse and remand 

with directions to issue an order to show cause and proceed in 

accordance with section 1172.6.

BACKGROUND 

I. Convictions 

In 1992, an amended information charged appellant and 

codefendant Richard Whitehurst with the robbery (§ 211) and 

murder (§ 187) of Timothy Ellerson, the robbery and murders of 

Tracy Bolton and Derrick Turner, and the attempted willful, 

deliberate, and premeditated murder of Dwayne Haley. The 

amended information further alleged multiple murder and 

robbery-murder special circumstances. (§ 190.2, subds. (a)(3), 

(a)(17).) 

At the ensuing joint trial, the court instructed the jury on

two theories of liability for the murders: willful, deliberate, and 

premeditated murder, using the then-current version of CALJIC 

No. 8.20; and first degree felony murder, using the then-current 

versions of CALJIC No. 8.21 and 8.27. It also instructed the jury 

on conspiracy principles using then-current CALJIC Nos. 6.10.5 

and 6.11, the latter of which included the natural and probable 

1 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text (Stats. 2022, 

ch. 58, § 10). All further statutory references are to the Penal 

Code unless otherwise indicated. 
3

consequences doctrine. The court used then-current CALJIC No. 

8.80 to instruct on the special circumstance allegations: “If you 

find beyond a reasonable doubt that the defendant was either the 

actual killer, a co-conspirator, or an aider and abettor, but you 

are unable to decide which, then you must also find beyond a 

reasonable doubt that the defendant with the intent to kill 

participated as a co-conspirator with or aided and abetted an 

actor in commission of the murder in the first degree, in order to 

find the special circumstance to be true. On the other hand, if 

you find beyond a reasonable doubt that the defendant was the 

actual killer, you need not find that the defendant intended to kill 

a human being in order to find the special circumstance to be 

true.” 

The jury found appellant guilty of all charges: three counts 

of first degree murder, two counts of second degree robbery, and 

one count of attempted willful, deliberate, and premeditated 

murder. The verdict forms did not specify the theory or theories 

on which the jury convicted him. The jury also found the special 

circumstances allegations true, again without clarifying the basis 

for its decision. After a penalty phase trial, the jury rejected the 

death penalty and selected life imprisonment without the 

possibility of parole for the three murders. 

On September 25, 1992, the court sentenced appellant to 

two consecutive terms of life imprisonment without the 

possibility of parole, and one concurrent term of the same, and 

one concurrent term of life with the possibility of parole. The 

court imposed and stayed (§ 654) two midterm sentences of three 

years for the robberies. We affirmed appellant’s convictions on 

direct appeal. (People v. Whitehurst (Nov. 16, 1994, B071419) 

[nonpub. opn.].) 
4

II. Petition for Resentencing 

In July 2019, appellant, acting in propria persona, filed a 

petition for resentencing under section 1172.6. The AG asserts 

that appellant left all the check boxes blank. The trial court 

appointed counsel for appellant on August 21, 2019. 

On September 30, 2019, the prosecution filed a written 

response opposing the petition. As relevant here, the prosecution 

argued that appellant could still be held liable for murder under 

section 189, subdivision (e) because the facts recited in our 

previous appellate opinion demonstrated that he was a major 

participant in the robberies and acted with reckless indifference 

to human life under the updated standards set forth in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark). 

Appellant’s counsel filed a reply in support of the petition 

on April 16, 2020. He subsequently filed a supplemental 

memorandum of points and authorities, alerting the trial court to 

new authorities holding that the court should not make factual 

findings at the prima facie stage (People v. Drayton (2020) 47 

Cal.App.5th 965 (Drayton)) and that special circumstances 

findings made prior to Banks and Clark do not foreclose section 

1172.6 relief as matter of law (People v. Torres (2020) 46 

Cal.App.5th 1168, rev. granted and expanded, S262011; People v. 

Smith (2020) 49 Cal.App.5th 85, rev. granted and expanded, 

S262835).

The court heard the petition on April 13, 2021. Based 

primarily upon the pre-Banks and Clark special circumstances 

jury instruction that required the jury to find either that 

appellant was the actual killer or acted with the intent to kill, 

and the jury’s true findings on the special circumstances 
5

allegations, the court found appellant was ineligible for relief as a 

matter of law. It concluded that appellant could not make a 

prima facie showing of eligibility for relief because “the jury made 

a determination in this case that the defendant was either the 

actual shooter or had the intent to kill, and the defendant’s not 

eligible for relief based on that.” Appellant timely appealed. 

DISCUSSION 

Appellant contends the trial court erred in denying his 

petition because he made a prima facie case for relief and neither 

the jury instructions, special circumstance findings, nor verdicts 

render him ineligible as a matter of law. Respondent concedes 

the matter should be remanded to the superior court to issue an 

order to show cause and hold an evidentiary hearing. We agree 

with the parties.

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); 

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

(Lewis).) SB 1437 accomplished this task by adding three 

provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 

830, 842 (Gentile).)

First, to amend the natural and probable consequences 

doctrine, SB 1437 added section 188, subdivision (a)(3), which 

requires a principal to act with malice aforethought before he or 

she may be convicted of murder. (§ 188, subd. (a)(3); accord, 
6

Gentile, supra, 10 Cal.5th at pp. 842-843.) Second, to amend the 

felony murder rule, SB 1437 added section 189, subdivision (e), 

which provides that a participant in the perpetration or 

attempted perpetration of certain felonies in which a death 

occurs may be liable for murder only if (1) the person was the 

actual killer; (2) the person was not the actual killer “but, with 

the intent to kill, aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted the actual killer in the 

commission of murder in the first degree”; or (3) the person was a 

major participant in the underlying felony and acted with 

reckless indifference to human life. (§ 189, subd. (e).)

Finally, SB 1437 added former section 1170.95, now section 

1172.6, which permits individuals who were convicted of felony 

murder or murder under a natural and probable consequences 

theory, but who could not be convicted of murder following SB 

1437, to petition the sentencing court to vacate the conviction and 

resentence on any remaining counts. (§ 1172.6, subd. (a).) A 

petition for relief under section 1172.6 must include a declaration 

by the petitioner that he or she is eligible for relief under section 

1172.6 based on all the requirements of subdivision (a), the 

superior court case number and year of the petitioner's 

conviction, and whether the petitioner requests appointment of 

counsel. (§ 1172.6, subd. (b)(1).)

If the petition satisfies those requirements, and the 

petitioner has requested counsel, the court must appoint counsel. 

(§ 1172.6, subd. (b)(3).) The prosecutor is also required to file a 

response to the petition, and the petitioner may then file a reply. 

(§ 1172.6, subd. (c).) The court then holds a hearing to determine 

whether the petitioner has made a prima facie showing he or she 
7

is entitled to relief. (Ibid.; see also Lewis, supra, 11 Cal.5th at pp. 

960-986.)

“[T]he ‘prima facie bar was intentionally . . . set very low.’” 

(Lewis, supra, 11 Cal.5th at p. 972.) “Like the analogous prima 

facie inquiry in habeas corpus proceedings, “‘the court takes 

petitioner’s factual allegations as true and makes a preliminary 

assessment regarding whether the petitioner would be entitled to 

relief if his or her factual allegations were proved. If so, the court 

must issue an order to show cause.’”” (Id. at p. 971, quoting 

Drayton, supra, 47 Cal.App.5th at p. 978.) In assessing the 

petition at the prima facie stage, the court must not engage in 

“‘factfinding involving the weighing of evidence or the exercise of 

discretion.’” (Lewis, supra, 11 Cal.5th at p. 972, quoting Drayton, 

supra, at p. 980.) If the petitioner’s allegations are facially 

sufficient to state a claim for relief, the trial court must issue an 

order to show cause unless “the record of conviction contains facts 

conclusively refuting the allegations in the petition,” thereby 

establishing the petitioner’s ineligibility for resentencing “as a 

matter of law.” (People v. Flores (2022) 76 Cal.App.5th 974, 991-

992.) The court’s authority to make factual determinations 

without conducting an evidentiary hearing “is limited to readily 

ascertainable facts from the record (such as the crime of 

conviction), rather than factfinding involving the weighing of 

evidence or the exercise of discretion (such as determining 

whether the petitioner showed reckless indifference to human life 

in the commission of the crime).” (Drayton, supra, 47 

Cal.App.5th at p. 980.) Facts preclusive of relief at the prima 

facie stage may include the absence of jury instructions on the 

felony murder theory or natural and probable consequences 

doctrine. (See People v. Harden (2022) 81 Cal.App.5th 45, 52.) 
8

They may not include special circumstances findings made prior 

to Banks and Clark. (People v. Strong (2022) 13 Cal.5th 698.) 

If the court finds the petitioner has made a prima facie 

showing, it must issue an order to show cause and hold an 

evidentiary hearing. (§ 1172.6, subds. (c)-(d).) At that hearing, 

“the burden of proof shall be on the prosecution to prove, beyond 

a reasonable doubt, that the petitioner is guilty of murder . . .

under California law as amended by [SB 1437].” (§ 1172.6, subd. 

(d)(3).) If the prosecution fails to meet this burden, the court 

must vacate the murder conviction and resentence the petitioner 

on any remaining counts. (Ibid.)

II. Analysis 

Appellant and respondent agree the trial court erred by 

concluding appellant was ineligible for relief as a matter of law. 

We agree. 

As respondent recognizes, “the record here indeed supports 

the fact that appellant was charged with murder and could have 

been convicted under either the felony murder rule or the natural 

and probable consequences theory.” The jury was expressly 

instructed on both theories, as well as on direct perpetrator and 

aiding and abetting principles, and the verdict forms do not 

indicate the basis on which the jury found appellant guilty. The 

record accordingly does not establish as a matter of law that 

appellant could be convicted of murder under the law as it 

currently stands. 

The instructions and findings on the special circumstances 

allegation likewise leave open the possibility that appellant was 

convicted under a now-impermissible theory. The special 

circumstances instruction permitted the jury to find the robberymurder allegation true if it found appellant was a co-conspirator, 
9

a direct aider and abettor, or the actual killer. Per the 

instructions on co-conspirator liability, however, the jury could 

have applied the natural and probable consequences doctrine 

instead of finding that appellant had the intent to kill. In 

appellant’s words, the record is “ambiguous” as to the basis on 

which appellant was convicted and the robbery-murder 

allegations were found true. An ambiguous record does not 

foreclose eligibility for relief as a matter of law at the prima facie 

stage of review.

As respondent concedes, “there is nothing in the record 

indicating the jury’s felony-murder special circumstances finding 

was based on a theory that appellant was a major participant in 

the robbery and acted with reckless indifference to human life. . . 

. [T]he relevant instructions never referenced major participation 

nor reckless indifference to human life as either a concept to 

consider or as a requirement. Nor would the jury have been 

required to find appellant was the actual killer or acted with 

actual malice before finding the robbery-murder special 

circumstance true.” Even if the jury had made those findings, 

they would not foreclose relief as a matter of law. “Neither the 

jury’s pre-Banks and Clark findings nor a court’s later sufficiency 

of the evidence review amounts to the determination section 

1172.6 requires, and neither set of findings supplies a basis to 

reject an otherwise adequate prima facie showing and deny 

issuance of an order to show cause.” (People v. Strong, supra, at 

p. 720.)

The trial court thus erred when it concluded appellant was 

ineligible for relief as a matter of law based on its special 

circumstances findings. We further agree with respondent that 

the only other plausible basis for the trial court’s finding “was its 
10

own consideration of the evidence that appellant was an actual 

killer or a direct aider and abettor.” Such factfinding is not 

permissible at the prima facie stage. (Drayton, supra, 47 

Cal.App.5th at p. 980.)

Because the record does not show as a matter of law that 

appellant was ineligible for resentencing, we must remand the 

case to the trial court to issue an order to show cause under 

section 1172.6, subdivision (c) and hold an evidentiary hearing 

pursuant to section 1172.6, subdivision (d)(3). At the evidentiary 

hearing, the trial court will not be compelled to credit appellant's 

allegations. (See Lewis, supra, 11 Cal.5th at 971 [court should 

not reject petitioner’s factual allegations on credibility grounds

“‘without first conducting an evidentiary hearing’”].) We express 

no opinion regarding appellant’s ultimate entitlement to relief.

DISPOSITION

The order denying appellant’s section 1172.6 petition is 

reversed. On remand, the trial court is directed to issue an order 

to show cause and hold an evidentiary hearing to determine 

whether appellant is entitled to section 1172.6 relief. At that 

hearing, “the burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that [appellant] is ineligible for 

resentencing.” (§ 1172.6, subd. (d)(3).) 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J. CURREY, J.