Filed 7/23/21 P. v. Lockett CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA R. LOCKETT et al.,

Defendants and Appellants.

 B301103

 (Los Angeles County

 Super. Ct. No. MA058054)

APPEAL from an order of the Superior Court of Los 

Angeles County. Daviann L. Mitchell, Judge. Reversed and 

remanded with directions. 

Jennifer Peabody, under appointment by the Court of 

Appeal, for Defendant and Appellant Joshua R. Lockett.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant Terrell D. Henderson.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Theresa A. 

Patterson, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Petitioners Joshua R. Lockett and Terrell Henderson were 

convicted of the murder of Brandon Houston. They appeal from 

the denial of their petitions for resentencing under Penal Code 

section 1170.95.

1 Among other things, Petitioners2 contend the 

trial court’s findings are not supported by substantial evidence

and they are entitled to relief under Senate Bill No. 1437 (SB 

1437). We agree. We therefore reverse the order denying 

Petitioners’ petitions for resentencing with directions.

PROCEDURAL BACKGROUND3

The Underlying Crime

On November 29, 2012, Brandon Houston and Ke’ana 

Moore, Houston’s girlfriend and the mother of his infant son, had 

a heated argument and shoving match. The electricity had been 

turned off in the Lancaster apartment where they lived, and 

Houston was jealous because he discovered Moore had been 

texting an ex-boyfriend. Although Moore wanted to leave, 

Houston did not want her to take the baby away from the house. 

At trial, one of Houston’s sisters testified Houston told Moore he 

did not want another man coming over to pick up Moore and his 

son. The sister remembered Moore telling Houston “he was going 

1 All further section references are to the Penal Code unless 

otherwise specified.

2 We consider Petitioners’ arguments together because they 

make similar arguments in their separate appeals, and each has 

joined in the other’s arguments. 

3 We repeat the facts and the trial proceedings as set forth in 

our previous opinion, People v. Lockett, et al. (Nov. 6, 2015, 

B256242) [nonpub. opn.], on which the parties also rely.
3

to get his.” Houston walked outside to calm down. Moore called 

her sister and asked for a ride.

Henderson, Lockett, and Randy Sullivan (the defendants)4

arrived in a black SUV that Henderson was driving. Henderson 

and Sullivan are brothers; Lockett is their cousin. Henderson 

was dating Moore’s sister. Houston and his 14-year-old nephew, 

D.S., were sitting on the steps outside the apartment. The 

defendants and Houston were all acquainted. Houston had once 

fought Lockett when they were both in high school.

Upon arriving at the apartment building, Henderson 

honked the horn. Moore came outside with her baby (Houston’s 

son). Henderson got out of the car and moved the seat so that 

Moore could get in. Sullivan and Lockett were still in the car. 

As Moore went to the SUV, Houston told her to wait. When 

Moore protested, Houston said he wanted to kiss his son.

As Houston was walking away from the SUV, Henderson 

bumped or pushed him and told him to move. Houston backed up 

and prepared to hit Henderson. D.S. told Henderson: “Don’t put 

your hands on my uncle.” Henderson and D.S. “squared up,” or 

prepared to fight. By this time, D.S.’s mother and Houston’s 

sister, Chrishonda Coulter, had joined the group. Either Houston 

or Coulter told Henderson, “You aren’t going to fight him,” 

referring to D.S., “he’s 14.” Coulter told Henderson that D.S. was 

not grown, indicating that if Henderson had a problem with D.S., 

he had a problem with her.

Sullivan got out of the SUV, took off his shirt, and said, 

“I’m Southside Crip. Where you from?” Sullivan was a self4 Henderson, Lockett, and Sullivan were jointly tried for 

Houston’s murder. While Sullivan also filed a petition for 

resentencing, he is not a party to this appeal.
4

admitted gang member. Houston responded, “I’m not with that.” 

Coulter said she knew some people from “190,” a Crips gang in 

Carson.5 Sullivan said, “We don't get along with those, they just 

killed one [of] us.” Houston told Sullivan, “It’s not about that.

It’s about you guys coming to my mom’s house being 

disrespectful.” 

Sullivan shook hands with Houston and said he “had love” 

for Houston, Moore, and their son. However, Henderson and D.S. 

were still arguing, and Coulter attempted to intervene.

Houston’s mother threatened to call the police. Henderson and 

Sullivan got back into the SUV. As defendants and Moore drove 

away, Henderson yelled that they would be back. In the car, 

Sullivan said he needed to call one of his “homies” to tell them he 

just got into it with someone from 190. He did not call anyone at 

that time. The defendants dropped Moore off and drove away.6

Meanwhile, Houston and D.S. walked to a liquor store. 

Houston and D.S. encountered some of Houston’s friends who had 

heard Houston was “getting jumped.” As Houston and D.S. were 

talking to the friends, they saw the SUV drive past. Coulter and 

her sister had joined Houston and D.S. Between 10 and 20 

minutes had passed since Henderson said he would be back. 

D.S. saw the defendants and two other people in the SUV. 

5 Coulter testified at trial that while this discussion of gangs 

occurred, “[i]t wasn’t about that. It was about respecting my 

mom’s home.”

6 On cross-examination, Moore testified that while she was 

in the SUV there was no discussion of anyone getting a gun, and 

no discussion at all of the Compton Southside Crips.
5

Lockett was driving. Henderson pointed at Houston’s group.7

The SUV drove in a back alley through a nearby shopping center. 

D.S. saw the SUV circle the area once, then he lost sight of it. 

Houston, along with his friends and family, continued walking, 

only to meet the group from the SUV walking straight over to 

them. The defendants were accompanied by a fourth man, 

Denelle Wilson, who some of Houston’s group knew as “Baby 

Frost” or “Jack Frost.” Wilson was in a relationship with 

Henderson’s and Sullivan’s sister. A fifth man wearing a black 

hoodie and a yellow or gold shirt lagged behind. No one with 

Houston recognized the fifth man.

The two groups met. One of Houston’s friends, Aaron 

Chism, knew Henderson and Lockett; they had gone to school 

together and Chism described them as “homeys.” Chism also had 

seen Sullivan around; they shook hands. Sullivan said, “How do 

you want to do this?” When D.S. asked what he meant, Sullivan 

said, “You said you want to fight my brother,” referring to 

Henderson.8 Henderson said he wanted to fight D.S., but Coulter 

7 On cross-examination, Coulter testified she waved the SUV 

down.

8 According to Coulter, in response to Sullivan’s question, 

“everybody was like ‘we all came to fight.’ ’’ On crossexamination, Coulter testified that Henderson said he wanted to 

fight D.S.; Coulter said D.S. was a kid and Henderson would have 

to fight her. Henderson responded: “ ‘Ma’am, my mother taught 

me better than that. I am not going to hit you.’ ’’ The fight broke 

out. Coulter blacked out and fell to the ground. When she woke 

up, she saw a guy standing over Houston, shooting him. Coulter 

indicated she did not remember being punched and did not know 

if she lost consciousness because of a blow or because of health 

reasons.
6

said she would not allow it because D.S. was underage. 

Henderson ran up and punched D.S. in the nose. Everyone began 

fighting. Sullivan was fighting one of Houston’s friends. Lockett 

was fighting Houston.

The fifth man wearing a hoodie was hiding behind a car. 

He was not fighting anyone. Suddenly, he left his position by the 

side of a car and approached the middle of the crowd.9 He fired 

two shots in the air. Everyone scattered and began running 

away. The shooter pointed the gun at one of Houston’s friends, 

shot, and missed. The shooter then looked at Houston. Houston 

turned and tripped on the curb. The shooter shot Houston in the 

leg, then approached, stood over him, and fired multiple shots at 

him. D.S. testified the only person he saw with a gun or weapon 

was the shooter.

The defendants, Wilson, and the shooter ran back to the 

SUV. They drove to the home of Shemita Cartwright, Henderson 

and Sullivan’s sister, and Wilson’s girlfriend. Police arrived 

sometime later and apprehended the defendants, but not the 

shooter. The black SUV was parked inside a closed garage. 

Police recovered cell phones in the house; the call and message 

history had been deleted from each phone. Law enforcement was 

unable to locate the shooter.

The Trial Proceedings

The defendants were charged in a single-count information 

with murder. (§ 187, subd. (a).) The information also alleged the 

defendants committed the crimes for the benefit of, at the 

direction of, and in association with a criminal street gang with 

9 One of Houston’s friends testified he did not see the shooter 

before the shots were fired, “because the shooter, he did like a 

magic trick. He just appeared out of nowhere.”
7

the intent to promote, further and assist the gang (§186.22, subd.

(b)(1)(C)) and that a principal personally and intentionally 

discharged a firearm which caused great bodily injury and death 

(§ 12022.53, subds. (b)–(e).) It further specifically alleged

Henderson suffered a prior strike conviction (§§ 667, subd. (d) 

and 1170.12, subd. (b)) and Sullivan served two prior prison 

terms (§ 667.5). The defendants pleaded not guilty and denied 

the special allegations. 

At trial, the prosecution presented evidence of the events as 

described above. The prosecution also offered the testimony of 

two gang experts. The first expert explained that in gang 

culture, respect “is huge,” and “a perceived act of disrespect can 

go anywhere from a verbal altercation to a shooting . . . at any 

second.” He suggested that in a “territorial, South Central L.A. 

gang mentality,” an incident or threat that disrespects the gang 

would have to be addressed. When presented with a hypothetical 

based on the facts of the case, the expert opined the brawl was a 

distraction that allowed the shooter to conduct a daytime 

execution that would benefit the gang.

The second gang expert testified about the Southside 

Compton Crips. He indicated they “associate with the color blue, 

sometimes black, blue and gold, because they’ll often wear 

lettered attire, and . . . some of their attire is the Seattle 

Mariners’ attire, where it would be blue and gold . . . you’ll have a 

gold ‘S’ on a blue hat.” He also opined that, based on a 

hypothetical similar to the facts of the case, he would conclude 

the shooting was gang-related. He further testified: “They left 

together, they came back together, they . . . left the scene 

together, and it’s been in my experience over the years, gang 

members going to a rival area or against a rival, they’re usually 
8

going to make sure—especially if they’re going in another 

neighborhood—that they are protected and they have a weapon. 

And in all the cases that I can recall, the persons in the car are 

going back to commit the crime, with the early assault or the 

shooting, are aware that there is a weapon in the car.”

Lockett also offered the testimony of a gang expert. In 

response to a hypothetical mirroring the facts of the case, the 

expert opined the cousin of the person invoking the Southside 

Crips gang name would not be associating for the benefit of the 

gang. He opined the facts represented a confrontation related to 

family matters, and both groups appeared to have the 

expectation of merely a fight, with the exception of the shooter. 

The expert did indicate if the shooter was from the Southside 

Compton Crips, his opinion would be that the shooting was likely 

for the benefit of the gang. However, he further explained that 

the mere shouting of gang names does not automatically mean a 

person is “gang banging.”

Lockett testified on his own behalf.10 According to Lockett, 

at the time of the incident, Henderson and Lockett were living in 

the same house. Henderson’s girlfriend (also the mother of his 

child) asked him to pick up her sister, Moore. As Henderson and 

Lockett were leaving the house, Sullivan called and asked for a 

ride because his bicycle tires were flat. As the three defendants 

pulled up to Houston’s house, Lockett could see that Houston was 

agitated. Lockett knew Houston; they had previously had an 

altercation in high school. However, they had not had any 

10 Prior to trial, Lockett was caught attempting to pass a note 

to Henderson while in jail. The note detailed a version of the 

events leading up to and including the shooting. At trial, 

Lockett’s testimony was consistent with the note.
9

problems since, and Houston had been to Lockett’s house 

multiple times. Moore was crying as she walked to the SUV. 

Houston approached to kiss the baby. D.S. was behind Houston. 

Sullivan tried to help Moore get the baby in the car. Lockett was 

sitting in the passenger seat. He did not know exactly what 

happened, but Henderson and D.S. ended up having an 

altercation. Houston and Sullivan exchanged words. Lockett got 

out of the car to let Sullivan out of the backseat. The exchange 

between Henderson and D.S. grew more heated. Coulter and 

Sullivan made gang references. Lockett did not intervene, 

because, as he explained: “I don’t have anything to do with 

gangs, so I don’t know. I don’t want to say anything about it.” 

He denied being a gang member or associating with gangs. He 

testified Sullivan was his cousin. Sullivan sometimes went to his 

mother’s house, where Lockett was living, so “of course” Lockett 

hung out with him. But Lockett and Henderson were close and 

went everywhere together.

In Lockett’s version of events, Sullivan told Houston they 

had not come to disrespect Houston’s house. Houston, observing 

Henderson and D.S., said there would be no fighting right there. 

Instead, “If you wanna fight, you all drop my son off and come 

back in front of the apartments to fight.” Once Lockett got back 

into the car, Henderson pointed to D.S. and said, “I’ll be back for 

you.” After they drove away, Sullivan said he was going to call 

someone. Henderson responded: “You don’t have to call nobody, 

this between me and [D.S.].” Sullivan did not call anyone. They

dropped Moore off. They left again, with Lockett driving. 

Henderson called Wilson. Lockett thought Henderson was going 

to get Wilson and they were all going to a fight. Lockett went 

along because of Henderson. Once in the car, Wilson asked if 
10

they could pick up his cousin.11 Lockett responded that he did 

not put gas in the car and was “just the person with a valid 

license.” Wilson directed them to a house where he met someone 

at the front door. He returned to the car with a man he 

introduced as his cousin Darren. Lockett did not see any 

weapons on Darren. There was no discussion of weapons. 

Everyone greeted Darren and introduced themselves. Lockett 

had never met Darren before. Lockett drove to the designated 

location of the fight. He drove past Houston’s group on the street 

because he did not realize it was them. However, there were 

people in the street flagging down the car. No one in the car 

made any statements relative to gangs, flashed gang symbols, 

referred to having a gun, or mentioned weapons. There was talk 

of everyone fighting, if necessary. Lockett was going back for 

Henderson to fight D.S. If multiple guys tried to jump 

Henderson, Lockett was prepared to defend his cousin.

Lockett parked the car, and everyone got out. Lockett did 

not talk to Darren. When they met Houston’s group, Sullivan 

shook someone’s hand. Sullivan asked, “How you guys wanna do 

this?” Henderson said he wanted to fight D.S. D.S. took off his 

shirt and began walking toward Henderson. Coulter also walked 

toward Henderson, saying if he was fighting D.S., he would have 

to fight her. Henderson said he would not fight Coulter, 

indicating his mother had raised him “better than that,” and he 

would not hit a woman. After that, everyone was in the middle of 

11 Lockett testified that Wilson said, “his cousin . . . [was] 

going back to his brother Robert house, and he asked me can I go 

pick him up.” On cross-examination, Lockett testified the 

defendants picked Wilson up at his brother Robert’s house. 

Lockett also admitted on cross-examination that Wilson “was 

called backup.”
11

the street, some running around, some “squaring off,” or 

preparing to fight, and some fighting. Lockett began looking for 

Henderson. Lockett was hit, or he tripped and fell. As he was 

getting up, he saw someone wearing a black hoodie run past. 

Shots rang out. As it turned out, Houston was killed. Lockett 

was scared for his life, so he ran. He began to vomit. He made 

his way back to the SUV and handed the car keys to Sullivan. 

He thought the man in the black hoodie might have been the man 

Wilson brought, and he “didn’t want any part of that.” They all 

went to Lockett’s cousin’s house. No one spoke in the car. 

Lockett was scared. He again vomited. He saw Wilson tell 

Darren, “Let’s go.” The two left. Sometime later the police 

arrived.

Lockett also offered the testimony of his cousin, Shemita 

Cartwright. Cartwright testified the defendants, Wilson, and a 

fifth man wearing a black hoodie came to her house. She only 

saw the fifth man briefly before he left with Wilson. She had 

never seen him before. On cross-examination she testified that 

when she opened the door for the group, no one was saying 

anything, throwing up, screaming, or sweating, nor did they look 

nervous. She testified that the fifth man was not one of Wilson’s 

two cousins she had seen before. She also admitted on crossexamination that during an interview with police on the day of 

the incident, she did not tell them that a fifth man wearing a 

black hoodie came to her house with Sullivan and Petitioners.

Argument, Deliberations, and Verdicts

In his closing argument, the prosecutor argued the 

defendants engaged in a premeditated, deliberate murder of 

Houston. The prosecutor asserted that when Sullivan said he 

had to call someone because of the issue with 190, the person 
12

called was the shooter; Lockett drove because they all knew there 

was a gun in the car and they wanted no problems if they were 

pulled over by police; and the shooter hid during the brawl 

because they all had a plan. The prosecutor argued the shooter 

would only know the defendants had a “beef” with Houston if 

Petitioners and Sullivan had told him. He asserted the shooter 

was wearing gang colors, he hid and did not get involved in the 

street fight, and he waited until he could sneak into the crowd 

and kill Houston. The prosecutor further repeatedly argued the 

incident was a premeditated and planned gang crime, reasoning 

that if the shooter was just a guy “picked up out of the blue, why 

not just start shooting everybody, right? Just start blasting.”

The prosecutor contended the group had to come back because 

“gang members don’t fight fair,” the group felt disrespected and, 

in accordance with gang culture, they had to “get a guy with a 

gun” and “make a statement.”

The jury was instructed on first and second degree murder. 

The court also instructed on both direct aiding and abetting 

liability, and the natural and probable consequences doctrine, 

with assault and battery identified as the target offenses. While 

deliberating, the jury asked the following questions: “Does each 

defendant have to touch [Houston] for battery to apply?”; “Does 

aiding and abetting as to assault and battery apply to our 

understanding of [Instruction No.] 960 [battery]?”; “Can you 

provide clarification as to natural and probable consequences in 

[Instruction No.] 403 [natural probable consequences]. Example 

please? Definition for ‘probable.’ Definition of ‘natural.’ ”

The jury found the defendants not guilty of first degree 

murder. It found each defendant guilty of second degree murder 

but found the associated gang enhancement not true. The trial 
13

court sentenced Lockett to a total prison term of 15 years to life. 

Henderson was sentenced to a total prison term of 30 years to 

life, plus 5 years. The court sentenced Sullivan to a total prison 

term of 17 years to life.

Petitions for Resentencing

In 2019, Petitioners Lockett and Henderson sought 

resentencing under section 1170.95, asserting they could not now 

be convicted of murder because they were convicted under the 

natural and probable consequences doctrine. The People opposed 

on the grounds SB 1437 was unconstitutional, and Petitioners 

were ineligible for resentencing because they were major

participants in the underlying felony who acted with reckless

indifference to human life or they personally acted with malice 

aforethought. 

The trial court found Petitioners had made a prima facie

showing they were eligible for relief and appointed counsel to 

represent them. After further briefing from the parties, the trial 

court issued an order to show cause why relief should not be 

granted and set an evidentiary hearing. 

At the August 2, 2019 hearing, the prosecutor indicated he 

intended to rely solely on the record of conviction to meet his 

burden of proof to show Petitioners were ineligible for 

resentencing. Petitioners did not seek to admit any new evidence 

to supplement the record of conviction. The trial court 

questioned whether the acquittal of the first degree murder 

charge affected the court’s evaluation of express malice. The 

prosecution asserted the jury’s finding had no effect because 

“the trial court can look at all the evidence, and the trial court 

can make an independent decision, which is what the law says, if 

this is an express malice case.” Lockett’s counsel argued the 
14

jury’s previous finding established “the prosecutor had not proven 

beyond a reasonable doubt that this was premeditated murder or 

that it involved express malice.” Henderson’s counsel further 

argued, “The jury clearly rejected the first degree theory in this 

case. If they want to find first degree, there’s plenty of evidence 

that they could have done it, and they rejected all that evidence. 

And what is left is a situation where our clients came back and 

got into a fight, that the People’s theory is that they got into a 

fight as a distraction for an unknown shooter. [¶] There was no 

reason to have to get into a fight. There’s no relationship 

between the fight and what happened with the shooter because 

the fight was actually meaningless in terms of what happened 

with the shooting. They didn’t have to start a fight, a distraction, 

for a shooting to happen[]. [The] shooting could have happened 

anyway.” The court took the matter under submission. 

The court subsequently denied the petitions in a 

memorandum of decision. It summarized its conclusions as 

follows: 

“1. This court held a hearing to determine whether 1) the 

Petitioners are entitled to relief where prosecution bears 

the burden of proof to prove beyond a reasonable doubt that 

the petitioner is ineligible for resentencing (§ 1170.95, 

subd. (d)(3) and [(2)]) to determine if Penal Code section 

1170.95 is constitutional.

“2. The jury convicted Petitioners of 2nd degree murder 

under either the theory of aiding and abetting or the theory 

of natural and probable consequences. Because jurors are 

not required to disclose the theory under which they convict 

the defendant of murder or make any such special findings 

nor are they even required to agree on the theory of 
15

conviction and in this case, the prosecution proceeded 

under both theories, it is not clear under which theory the 

jury convicted the Petitioners.

“3. This court finds that the Petitioners could be convicted 

of murder beyond a reasonable doubt under the law after 

January 1, 2019, under the theory that while the 

Petitioners were not the actual killers, they were principals 

who had the intent to kill and who aided and abetted the 

commission of the murder of Brandon Houston.

“4. Because this court finds that the Petitioners are

not entitled to relie[f] under S.B. 1437, it elects not to

make any findings as to the constitutionality of S.B.

1437.”

The court then set forth a recitation of the facts of the underlying 

crime and the criminal proceedings against Petitioners as well as 

a summary of SB 1437. In its discussion of the case, it stated: 

“After review of the entire court file, pleadings and 

arguments of counsel, this court finds that the prosecution has 

established beyond a reasonable doubt that all three Petitioners 

are guilty of second degree murder under the theory that while 

the Petitioners were not the actual killer, they each were 

principals who aided and abetted the commission of the 

murder . . . there was ‘plenty of evidence,’ to convict these 

defendants on first degree murder and the court agrees that [at] 

a minimum there is sufficient evidence to convict on second 

degree murder under aiding and abetting, and furthermore, 

sufficient evidence to convict on first degree murder as a 

principal under the aiding and abetting theory.” 

“The record reflects that the prosecution sought the 

petitioner’s murder conviction based on multiple theories, 
16

including first and second degree murder under both a direct 

aiding and abetting theory as well as natural and probable 

consequence theory, with assault and battery identified as the 

target offenses. Since the jury need not disclose its theory of 

liability or even agree on any particular theory, neither of the 

parties are able to show the actual basis of the petitioner’s 

conviction. While questions about natural and probable 

consequence was discussed, there is no credible evidence to aid 

the court in determining what theory any particular juror relied 

upon in making its decision, if they were unanimous in their 

theory or there was a split in their decision as to the theory upon 

which they convicted each Petitioner. Nevertheless, it is the 

burden of the prosecution to show, beyond a reasonable doubt, 

that the petitioner is guilty of murder under the law effective 

January 1, 2019.” 

“For the petitioner to be eligible for relief, it must be shown 

that ‘[t]he petitioner could not be convicted of first or second 

degree murder because of the changes to Section 188 or 189 made 

effective January 1, 2019’ (§ 1170.95, subd. (a)(3)[]) and this court 

finds that the Petitioners have not met this burden. In this case, 

when Petitioner Sullivan said he had to call someone because of 

the issue with 190, the person called was the actual killer Cedric 

Burton; Petitioner Lockett drove because they all knew there was 

a gun in the car and they wanted no problems if they were pulled 

over by police; and the shooter hid during the brawl because they 

all had a plan to distract the group allowing the killer to walk up 

and execute the victim. Specifically, the killer would only know 

the defendants had a ‘beef’ with Houston if the defendants had 

told him which is evidence of a discussion prior to their arrival at 

the scene and all had devised a plan to isolate the victim and kill 
17

him. Also, the killer was wearing gang colors, hid when the 

others approached the victim and his group, and the killer did not 

get involved in the street fight. The killer waited until he could 

sneak into the crowd and kill Houston as planned. The reason 

the Petitioners return with the killer to kill the victim was 

because the group felt disrespected and, in accordance with gang 

culture, they needed to make a statement by killing the victim.”

“This court finds that there is sufficient evidence to prove 

beyond a reasonable doubt that each Petitioner conspired with 

the actual killer Cedric Burton to kill the victim in this case, that 

they were principals in the murder, shared the intent to kill, and 

aided and abetted the actual killer in the murder. For the 

foregoing reasons, all three Petitioners[’] request to be 

resentenced under Penal Code section 1170.95 is Denied.” 

Petitioners timely appealed. 

DISCUSSION

Petitioners challenge the trial court’s order on several 

grounds: (1) the trial court erred by conducting a trial de novo 

and disregarding the jury’s verdict and finding in violation of

collateral estoppel; (2) the trial court applied the wrong standard 

of proof in resolving the petition; and (3) the evidence was 

insufficient to support the trial court’s finding they acted with the 

intent to kill and directly aided and abetted the murder. We 

conclude reversal is warranted on the ground of insufficiency of 

the evidence. Having reached this conclusion, we need not 

address Petitioners’ other grounds for error.

I. Penal Code Section 1170.95

SB 1437, which became effective on January 1, 2019, 

amended the felony murder rule and the natural and probable 

consequences doctrine to ensure that murder liability is not 
18

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); see People v. Martinez

(2019) 31 Cal.App.5th 719, 722–723.) It did so by amending 

sections 188 and 189 and by adding section 1170.95, which 

provides a procedure by which those convicted of murder can seek 

retroactive relief if the changes in law would affect their 

previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)

Under section 1170.95, subdivision (a) a defendant may 

petition for resentencing if he or she was “convicted of felony 

murder or murder under a natural and probable consequences 

theory” and the following conditions are met: “(1) A charging 

document 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) The 

petitioner was convicted of first or second degree murder 

following trial or an accepted plea; and (3) The petitioner could 

‘not be convicted of first or second degree murder because of 

changes to Section[s] 188 or 189’ made by Senate Bill No. 1437. 

(§ 1170.95, subd. (a).)” (People v. Lewis (2020) 43 Cal.App.5th 

1128, 1135–1136 (Lewis), review granted Mar. 18, 2020, 

S260598.)

Section 1170.95, subdivision (c) sets forth the procedure 

once the defendant files a complete petition: “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 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 within 60 days of service of the 
19

petition and the petitioner may file and serve a reply within 30 

days after the prosecutor response is served. These deadlines 

shall be extended for good cause. 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.”

“Within 60 days after the order to show cause has issued, 

the court shall hold a hearing to determine whether to vacate the 

murder conviction and to recall the sentence and resentence the 

petitioner on any remaining counts in the same manner as if the 

petitioner had not been previously been sentenced, provided that 

the new sentence, if any, is not greater than the initial sentence. 

This deadline may be extended for good cause.” (§ 1170.95, subd. 

(d)(1).)

“At the hearing to determine whether the petitioner is 

entitled to relief, the burden of proof shall be on the prosecution 

to prove, beyond a reasonable doubt, that the petitioner is 

ineligible for resentencing. If the prosecution fails to sustain its 

burden of proof, the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and 

the petitioner shall be resentenced on the remaining charges.

The prosecutor and the petitioner may rely on the record of 

conviction or offer new or additional evidence to meet their 

respective burdens.” (§ 1170.95, subd. (d)(3).) 

“If petitioner is entitled to relief pursuant to this section, 

murder was charged generically, and the target offense was not 

charged, the petitioner’s conviction shall be redesignated as the 

target offense or underlying felony for resentencing purposes. 

Any applicable statute of limitations shall not be a bar to the 

court’s redesignation of the offense for this purpose.” (§ 1170.95, 

subd. (e).) 
20

“A person who is resentenced pursuant to this section shall 

be given credit for time served. The judge may order the 

petitioner to be subject to parole supervision for up to three years 

following the completion of the sentence.” (§ 1170.95, subd. (g).)

II. Standard of Review

We employ the substantial evidence standard of review 

when considering a trial court’s factual findings made in 

connection with its section 1170.95, subdivision (d)

determination. (People v. Clements (2021) 60 Cal.App.5th 597, 

618, review granted April 28, 2021, S267624.) “When considering 

a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable 

to the judgment to determine whether it contains substantial 

evidence — that is, evidence that is reasonable, credible, and of 

solid value — from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Lindberg

(2008) 45 Cal.4th 1, 27.) 

The substantial evidence standard is the same whether the 

evidence is direct or circumstantial. (People v. Whisenhunt (2008) 

44 Cal.4th 174, 200.) “Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn 

from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th 

115, 126.) “A reasonable inference may not be based on suspicion 

alone, or on imagination, speculation, supposition, surmise, 

conjecture, or guesswork; a finding of fact must be an inference 

drawn from evidence rather than a mere speculation as to 

probabilities without evidence. [Citations.]” (People v. Rekte

(2015) 232 Cal.App.4th 1237, 1247.) This is because suspicion is 

not evidence, it merely raises a possibility, and this is not a 

sufficient basis for an inference of fact. (People v. Redmond
21

(1969) 71 Cal.2d 745, 755.) Moreover, we must determine 

whether the evidence of each of the essential elements of the 

crime is substantial; it is not enough for the respondent to simply 

point to “some” evidence supporting the finding. (People v. 

Bassett (1968) 69 Cal.2d 122, 138.)

“Whether a particular inference can be drawn from the 

evidence is a question of law.” (People v. Austin (1994) 23 

Cal.App.4th 1596, 1604, disapproved on other grounds by People 

v. Palmer (2001) 24 Cal.4th 856, 864.) Although all reasonable 

inferences must be drawn in support of the judgment, we “may 

not ‘go beyond inference and into the realm of speculation in 

order to find support for a judgment. A finding . . . which is 

merely the product of conjecture and surmise may not be 

affirmed.’ ” (People v. Memro (1985) 38 Cal.3d 658, 695 

disapproved on other grounds by People v. Gaines (2009) 46 

Cal.4th 172, 181.) 

“ ‘ “If the circumstances reasonably justify the trier of fact’s 

findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a 

contrary finding does not warrant a reversal of the judgment.” ’ ” 

(People v. Bean (1988) 46 Cal.3d 919, 933.) We may reverse for 

lack of substantial evidence only if “ ‘upon no hypothesis 

whatever is there sufficient substantial evidence to support’ ” the 

trial court’s finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Finally, the sufficiency of the evidence must be assessed in 

light of the prosecution’s theory of conviction in the trial court. 

(Cole v. Arkansas (1948) 333 U.S. 196.) In order to conform to 

due process of law, “[defendants are] entitled to have the validity 

of their convictions appraised on consideration of the case as it 

was tried and as the issues were determined in the trial court.”
22

(Id. at pp. 201–202; see also People v. Smith (2005) 37 Cal.4th 

733, 740.)

III. Second Degree Murder

“[S]econd degree murder . . . is ‘the unlawful killing of a 

human being with malice aforethought but without the 

additional elements, such as willfulness, premeditation, and 

deliberation, that would support a conviction of first degree 

murder.’ [Citation.] Malice may be either express (as when a 

defendant manifests a deliberate intention to take away the life 

of a fellow creature) or implied. [Citation.] ‘Malice is implied 

when the killing is proximately caused by “ ‘an act, the natural 

consequences of which are dangerous to life, which act was 

deliberately performed by a person who knows that his conduct 

endangers the life of another and who acts with conscious 

disregard for life.’ ” [Citation.]’ ” (People v. Cravens (2012) 53 

Cal.4th 500, 507.) 

Criminal liability extends to “[a]ll persons concerned in the 

commission of a crime,” and all those who “aid and abet in its 

commission.” (§ 31.) Guilt as a direct aider and abettor to second 

degree murder requires: (1) knowledge of the direct perpetrator’s 

intent to commit the crime; (2) intent to assist in committing the 

crime; and (3) conduct that in fact assists in committing the 

crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225.)

SB 1437 did not alter the law regarding the criminal 

liability of direct aiders and abettors to murder because such 

persons necessarily “ ‘know and share the murderous intent of 

the actual perpetrator.’ ” (Lewis, supra, 43 Cal.App.5th at p.

1135.) Thus, “relief must be denied if the People establish, either 

based on the record of conviction or through new or additional 

evidence, that the defendant personally acted with malice.” 
23

(People v. Lopez (2019) 38 Cal.App.5th 1087, 1114, review 

granted Nov. 13, 2019, S258175.)

IV. The Evidence Was Insufficient to Support the Trial 

Court’s Finding of Malice

The trial court concluded “that each Petitioner conspired 

with the actual killer Cedric Burton to kill the victim in this case, 

that they were principals in the murder, shared the intent to kill 

the victim, and aided and abetted the actual killer in the 

murder.” Based on the trial court’s conclusions, our task is to 

determine whether substantial evidence supports the trial court’s 

conclusions: (1) that Lockett and Henderson separately knew 

Burton intended to kill; (2) that Lockett and Henderson shared 

Burton’s intent to kill; and (3) that Lockett and Henderson, by act 

or advice, aided, promoted, encouraged, or instigated the 

commission of the murder. (CALCRIM No. 401.) Based on our 

review of the record, substantial evidence does not support the 

trial court’s conclusions on the required elements for aiding and 

abetting a second degree murder. 

All parties acknowledge there was no direct evidence 

Petitioners knew of or shared the killer’s criminal intent or

conspired with him to kill Houston. Rather, the trial court drew 

inferences from the circumstantial evidence that: (1) the person 

Sullivan called from the SUV was the actual killer; (2) Petitioners 

knew there was a gun in the car; (3) they all had a plan to 

distract the group with a brawl while the killer hid and waited to 

shoot Houston; (4) the killer targeted Houston because 

Petitioners told him they had a “beef” with Houston; (5) the 

killing was gang-related because the killer wore gang colors; and 

(6) they had a motive to kill Houston because they felt 
24

disrespected and, in accordance with gang culture, they needed to 

make a statement by killing him. 

The trial court inferred Sullivan called the actual killer 

solely from Sullivan’s statement that he had to call “one of my 

homies” to report the issue with 190. The record shows two 

additional men, Wilson and Burton, accompanied the Petitioners 

and Sullivan back to meet up with Houston and his group. The

inference that Sullivan called Burton and not Wilson, even if 

reasonable, does not further establish an additional and 

necessary inference that both Lockett and Henderson shared in 

Burton’s intent to kill Houston.

The trial court next drew the inference that because 

Lockett (who had a valid California driver’s license) drove back 

instead of Henderson, the Petitioners knew there was a gun in 

the SUV. A reasonable inference may be made that Lockett, who 

was the only one with a valid driver’s license, drove back to 

Houston’s neighborhood because Petitioners “wanted no problems 

if they were pulled over by the police.” While the fact that 

Petitioners did not want problems with the police may 

reasonably support the additional inference they knew there was 

a gun in the SUV, it does not support two further inferences:

they knew the shooter intended to kill Houston with that gun and

they shared that intent with him.

Next, the trial court concluded Petitioners had a plan to 

distract Houston’s group with a brawl to allow the shooter to 

walk up and execute the victim. The People presented no 

reasonable theory to explain why Petitioners needed to distract 

Houston and his group so the killer “could sneak into the crowd 

and kill Houston as planned.” There simply is no rational 
25

inference that the Petitioners engaged in the brawl as a ruse to 

allow Burton the chance to sneak in for the kill. 

Likewise, the evidence does not support the trial court’s 

inference the killer targeted Houston because Petitioners told 

him they had a “beef” with Houston. Instead, the evidence 

showed Coulter claimed an affiliation with 190 when Sullivan 

asked Houston, “Where you from?” Sullivan later stated he “had 

love” for Houston, Moore, and their son. Moreover, Henderson’s 

altercation was with D.S., Houston’s nephew. Coulter stepped 

between them to stop them from fighting and indicated that if 

Henderson had a problem with D.S., he had a problem with her. 

Houston, on the other hand, disclaimed any gang affiliation and 

told Sullivan he only had a problem with “you guys coming to my 

mom’s house being disrespectful.” He did not interfere in 

Henderson’s argument with D.S. 

There is also no evidence to support the fifth and sixth 

inferences, both of which infer the crime was gang related. 

Specifically, the court relied on evidence the killer was a gang 

member because he wore gang colors and Petitioners had a 

motive to kill Houston because they felt disrespected and, in 

accordance with gang culture, they needed to make a statement 

by killing him. While the color of Burton’s clothing may support 

an inference he was a gang member, there is a gap in logic to 

conclude the Petitioners, i.e., Lockett and Henderson, felt 

disrespected and needed to retaliate against Houston by killing 

him. The record does not support a finding Petitioners, who are 

not gang members, would be motivated to kill Houston, who was

also not a gang member. Instead, the record shows Henderson

was upset at D.S. and wanted to fight D.S., not Houston.
26

“Somewhere along the evidentiary spectrum, a rational 

inference loses its character if one or more of the premises upon 

which it rests, fails. When this happens, the inference becomes 

irrational speculation.” (People v. Bohana (2000) 84 Cal.App.4th 

360, 369.) Here, the trial court’s conclusions that Lockett and 

Henderson (1) knew Burton intended to kill Houston, 

(2) entertained an intent to kill Houston, and (3) took action to 

assist Burton kill Houston, was speculative. As such, the trial 

court’s conclusions are not supported by substantial evidence. 

DISPOSITION

The order denying Petitioners relief under section 1170.95 

is reversed. The matter is remanded to the trial court with 

directions to grant Henderson’s and Lockett’s petitions for 

resentencing and resentence them in accordance with section 

1170.95. Thereafter, a copy of the court’s order and an amended 

abstract of judgment should be sent to the Department of 

Corrections and Rehabilitation. Further, the court should report 

a resentencing under SB 1437 to the Department of Justice as 

required by section 13151.

OHTA, J. *

We Concur:

STRATTON, Acting P. J. WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.