Filed 9/20/23 P. v. Branch CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAQUAN RASHAD BRANCH,

Defendant and Appellant.

 D080784

 (Super. Ct. No. RIF1201399)

APPEAL from an order of the Superior Court of Riverside, 

Matthew C. Perantoni, Judge. Affirmed.

Robert E. Boyce, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winter, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Alan A. Amann and Robin Urbanski, Deputy Attorneys General, for Plaintiff 

and Respondent.

Daquan Rashad Branch appeals from an order summarily denying his 

petition for relief from a 2013 attempted murder conviction under former 
2

Penal Code section 1170.95 (now § 1172.6).1 We conclude that Branch is 

legally ineligible for relief because he was not convicted of “attempted murder 

under the natural and probable consequences doctrine.” (§ 1172.6, subd. (a).) 

We also reject Branch’s argument that he is entitled to relief based on his 

theory that he could have been convicted of attempted murder under some 

other theory of imputed malice. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

Like the parties, we summarize the facts from the underlying trial as 

stated in our unpublished 2015 decision affirming Branch’s conviction for 

attempted murder (People v. Branch (May 8, 2015, D067450 [nonpub. opn.], 

review den. Sept. 9, 2015, S227006 (Branch)). (See People v. Lopez (2022) 78 

Cal.App.5th 1, 13 [“The record of conviction may include the underlying facts 

as presented in an appellate opinion”].) We provide only an abbreviated 

version of the facts relevant to Branch’s section 1172.6 petition.

Branch was an active member of a Moreno Valley criminal street gang 

known as Sex Cash, Web Block. On February 9, 2012, two of Branch’s fellow 

gang members, Caleb Marquan Henderson and Jeremy Walker, confronted 

Jason G. as he was walking with friends in an El Dorado apartment complex. 

They asked Jason for his gang affiliation. Jason replied that he was a 

member of the Rolling 90’s, a Los Angeles gang. Henderson told Jason’s 

1 All statutory references are to the Penal Code unless otherwise 

specified. Effective June 30, 2022, section 1170.95 was recodified without 

substantive change in section 1172.6, pursuant to Assembly Bill No. 200 

(2021-2022 Reg. Sess.) (Assembly Bill No. 200). (See Stats. 2022, ch. 58, 

§ 10.) We refer to the current codification throughout this opinion, unless 

otherwise indicated. 
3

group that they were in “Sex Cash territory, Web Block.” (Branch, supra, 

D067450.)

Later that day, Jason met his friend Kendrick P., who was associated 

with the Harlem 30’s, another Los Angeles gang. Kendrick was familiar with 

Branch, Henderson, and Walker, and had played video games with them 

earlier that afternoon at the same El Dorado complex in Lareka Davis’s

apartment. Henderson stayed at the apartment as well, and Branch and 

Walker came by sometimes. (Branch, supra, D067450.)

Jason and Kendrick were walking through the El Dorado complex 

when they saw Davis talking on her cell phone near her apartment. Davis 

made a gesture towards them as they passed. Soon afterwards, Jason noticed 

that they were being followed by Branch, Henderson, and Walker. 

Henderson yelled out “Web” or “Web Block” at least once, and Walker fired 

shots at Jason and Kendrick. Jason was struck once in the back, fracturing 

two ribs and puncturing a lung. Jason ran to a nearby apartment, where the 

occupant called the police. Kendrick fled to another apartment complex. 

(Branch, supra, D067450.)

The Riverside County Sheriff’s Department responded to the scene. 

They found five spent .380-caliber shell casings and a live .380-caliber bullet. 

After further investigation, they obtained and executed a search warrant at 

Davis’s apartment. Davis, Branch, and Henderson were inside. Branch 

attempted to escape over the balcony. In the apartment, sheriff’s deputies 

found papers referring to Web Block and a loaded .380 caliber handgun 

hidden in a bucket. (Branch, supra, D067450.) 

After her arrest, Davis told investigators that she was at her 

apartment on the night of the shooting. She heard five loud booming sounds. 

A few minutes later, Branch and Henderson came back to the apartment 
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sweating profusely. Davis was aware that Branch, Henderson, and Walker 

were members of Sex Cash and had overheard them say “Web Block” in the 

past. (Branch, supra, D067450.)

A gang expert testified that the shooting was committed to benefit the 

Sex Cash criminal street gang. (Branch, supra, D067450.)

B. Criminal Proceedings

In a joint trial with two juries (one for Branch and Henderson and the 

other for Walker), one of the juries convicted Branch and Henderson of two 

counts each of attempted murder (§§ 187, subd. (a), 664) and one count each 

of active participation in a criminal street gang (§ 186.22, subd. (a)). The jury 

also found true allegations that a principal personally discharged a firearm 

resulting in great bodily injury (§ 12022.53, subds. (d), (e)(1)), and that the 

crimes were committed in association with or for the benefit of a criminal 

street gang (§ 186.22, subd. (b)). As to Branch and Henderson, the jury also 

found that the attempted murders were not premeditated and deliberate.2

The jury instructions given to Branch’s jury included CALCRIM 

No. 401 on direct aiding and abetting liability and CALCRIM No. 600 on 

attempted murder. The court gave no jury instruction on the natural and 

probable consequence doctrine (CALCRIM No. 402) or felony murder 

(CALCRIM Nos. 540A-540C). The attempted murder instruction (CALCRIM 

No. 600) explicitly stated that the perpetrator must have “intended to kill” 

2 The other jury convicted Walker of two counts of attempted, 

premeditated and deliberate murder and being an active participant in a 

criminal street gang. The Walker jury also found that he personally and 

intentionally discharged a firearm resulting in great bodily injury and 

committed the crimes in association with or for the benefit of a criminal 

street gang. We later reversed the judgment against Walker. (Branch, 

supra, D067450.)
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the victim. The direct aiding and abetting instruction (CALCRIM No. 401) 

stated in relevant part:

“To prove that the defendant is guilty of a crime based on 

aiding and abetting that crime, the People must prove that:

“1. The perpetrator committed the crime;

“2. The defendant knew that the perpetrator intended to 

 commit the crime;

“3. Before or during the commission of the crime, the 

 defendant intended to aid and abet the perpetrator in 

 committing the crime; [¶] AND [¶]

“4. The defendant’s words or conduct did in fact aid and 

 abet the perpetrator’s commission of the crime. 

“Someone aids and abets a crime if he or she knows of the 

perpetrator’s unlawful purpose and he or she specifically 

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

encourage, or instigate the perpetrator’s commission of that 

crime.”

The trial court sentenced Branch to an indeterminate term of 50 years 

to life plus a determinate term of nine years four months. We affirmed the 

judgment on appeal. (Branch, supra, D067450.)

C. Petition for Resentencing

In June 2022, Branch filed a petition for resentencing under section 

1172.6. After appointing counsel to represent Branch, the court conducted a 

hearing in July 2022. The prosecutor informed the court that Branch had 

been convicted of attempted murder; that the jury had not been instructed on 

the natural and probable consequences doctrine or felony murder; and that 

he had provided defense counsel with the appellate opinion and jury 

instructions. Defense counsel responded, “I’ve confirmed everything counsel 

said and I’ll submit.” Based on these statements, the trial court denied the 

petition. 
6

DISCUSSION

Branch contends that the trial court erred by denying his section 

1172.6 petition for relief without an evidentiary hearing. He asserts that he 

was eligible for relief because one of the jury instructions given at his trial 

(CALCRIM No. 401) and the prosecutor’s closing argument permitted the 

jury to convict him of aiding and abetting the attempted murder without any 

finding that he personally harbored a specific intent to kill. We review 

Branch’s eligibility for relief de novo. (People v. Harrison (2021) 73 

Cal.App.5th 429, 437.)

Section 1172.6 allows those previously convicted of felony murder, or 

murder or attempted murder under the natural and probable consequences 

doctrine, or murder based on any other theory of imputed malice, to petition 

the court to have their convictions vacated and be resentenced on any 

remaining counts, if they could not presently be convicted of murder or 

attempted murder because of changes to the law made effective in January 

2019. (§ 1172.6, subd. (a).) After appointment of counsel, the trial court is 

permitted to examine the record of conviction to assess whether it refutes the 

petitioner’s claim of eligibility. (People v. Lewis (2021) 11 Cal.5th 952, 970–

972.) The court may deny the petition at the prima facie stage if the record of 

conviction discloses that the petitioner is ineligible for relief as a matter of 

law. (Id. at p. 971.) 

Here, the record establishes that Branch is ineligible for relief as a 

matter of law. Branch was convicted of attempted murder, not murder. The 

only theory of attempted murder specified by section 1172.6 is “attempted 

murder under the natural and probable consequences doctrine.” (§ 1172.6, 

subd. (a); see People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley) [the 

statute “applies by its terms only to attempted murders based on the natural 
7

and probable consequences doctrine”].) But Branch’s jury was not instructed 

on any such theory. The court instructed the jury with CALCRIM Nos. 400 

and 401 on direct aiding and abetting liability—but did not give CALCRIM 

Nos. 402 or 403 or any other instruction on the natural and probable 

consequences doctrine. Thus, Branch was not convicted of attempted murder 

on any theory specified by section 1172.6.3 (See, e.g., People v. Estrada 

(2022) 77 Cal.App.5th 941, 946 (Estrada) [summary denial of section 1172.6 

petition affirmed where record demonstrated trial court did not instruct jury 

on natural and probable consequences doctrine]; People v. Offley (2020) 48 

Cal.App.5th 588, 599 [“if the jury did not receive an instruction on the 

natural and probable consequences doctrine, the jury could not have 

convicted the defendant on that basis, and the petition should be summarily 

denied”].) 

Section 1172.6 does not apply to an attempted murder conviction based 

on direct aiding and abetting liability. “A theory of direct aiding and abetting 

remains a valid theory [under current law].” (Coley, supra, 77 Cal.App.5th at 

p. 546 [defendant convicted of murder and attempted murder on direct aiding 

and abetting theory not eligible for section 1172.6 relief because jury was not 

instructed on natural and probable consequences doctrine], citing People v. 

Gentile (2020) 10 Cal.5th 830, 848; see also People v. Reyes (2023) 14 Cal.5th 

981, 990 [“Case law has recognized and applied this theory, and we see no 

3 We need not and do not decide whether, notwithstanding the plain 

language of the statute, it applies to petitioners who were convicted of 

attempted murder and could have been found guilty on a theory of imputed 

malice based solely on their participation in the crime. Even if the statute 

applied to such petitioners, we would still conclude that Branch could not 

have been convicted on such a theory of imputed malice for reasons we 

explain below.
8

basis to abrogate it.”].) Thus, Branch is legally ineligible for relief under 

section 1172.6.

Branch acknowledges that the court did not instruct on the natural and 

probable consequences doctrine. Citing People v. Langi (2022) 73 Cal.App.5th 

972 (Langi), however, he contends that the jury could have convicted him of 

attempted murder as an aider and abettor on an imputed malice theory. In 

Langi, the defendant was convicted of second-degree murder as an aider and 

abettor after participating with three other men in beating a man who died 

from head trauma after falling and hitting his head. (Id. at pp. 975, 976–

977.) The court did not instruct the jury on the natural and probable 

consequences doctrine, but did instruct on aiding and abetting (CALJIC 

No. 3.01) and second degree murder (CALJIC No. 8.31). (Id. at pp. 975, 980–

981.)

On appeal from the summary denial of Langi’s section 1172.6 petition, 

the court determined that the combined effect of the aiding and abetting 

instruction (CALJIC No. 3.01) and the second-degree murder instruction 

(CALJIC No. 8.31) created an ambiguity, which could have allowed the jury 

to “find the defendant guilty of aiding and abetting second degree murder 

without finding that he personally acted with malice.” (Langi, supra, 73 

Cal.App.5th at p. 982.) Specifically, the court observed that while the aiding 

and abetting instruction stated that a person aids and abets a crime if he acts 

with knowledge of the perpetrator’s unlawful purpose and with the intent to 

commit or encourage that crime, “the second-degree murder instruction 

specified that the direct perpetrator of that crime need not act with the 

unlawful intent of causing death.” (Ibid.) Thus, the court concluded that 

Langi could have been convicted of aiding and abetting second-degree murder 
9

even if he only intended to encourage the perpetrator’s intentional act of 

punching the victim. (Id. at pp. 982–983.)

Langi is inapposite here. In contrast to Langi, Branch was convicted of 

aiding and abetting an attempted murder, not second degree or implied 

malice murder. The court in Branch’s trial explicitly instructed the jury that 

the perpetrator of the attempted murder must have “intended to kill” the 

victim. The court did not give any jury instruction on implied malice. For 

this reason, Langi is not on point. (See Coley, supra, 77 Cal.App.5th at 

pp. 546–547 [Langi inapplicable to defendant convicted of attempted murder 

because Langi “involve[d] implied malice” murder whereas attempted murder 

requires “express rather than implied malice”].)

The instructions given to Branch’s jury on direct aiding and abetting 

liability (CALCRIM Nos. 400 and 401) also required the jury to find that 

Branch shared the perpetrator’s intent to kill. These instructions informed 

the jury that to convict Branch of attempted murder as an aider and abettor

of that crime, the prosecution had to prove that Branch knew the perpetrator 

intended to commit the crime, that he intended to aid and abet the 

perpetrator in committing the crime, and that he did aid and abet the 

perpetrator in attempting the crime. Based on these instructions, there is 

“no reasonable likelihood” jurors would have believed that they could convict 

Branch of attempted murder based on a theory of imputed malice. (See 

People v. Johnson (2016) 62 Cal.4th 600, 640–641 [where trial court gave

CALCRIM Nos. 400 and 401, “there was no reasonable likelihood” the jurors 

would have understood the instructions “to allow them to base defendant’s 

liability for first degree murder on the mental state of the actual shooter, 

rather than on defendant’s own mental state in aiding and abetting the 

killing.”].) These instructions correctly conveyed the principle that an aider 
10

and abettor’s “mental state is her own; she is liable for her mens rea, not the 

other person’s.”4 (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see also 

Estrada, supra, 77 Cal.App.5th at pp. 947–948 [no reasonable likelihood 

direct aider and abettor was convicted of murder based on theory of imputed 

malice “because the jury was instructed on CALCRIM No. 401”].)

Branch nevertheless contends that CALCRIM No. 401 allowed the jury 

to convict him of attempted murder for aiding and abetting the perpetrator’s 

commission of a crime other than attempted murder (such as the charged 

crime of active participation in a criminal street gang) without harboring any 

intent to kill. We conclude, however, that “no reasonable juror would have 

interpreted [CALCRIM No. 401] in the manner now argued by [Branch].” 

(People v. Hardy (1992) 2 Cal.4th 86, 151.) CALCRIM No. 401 stated that to 

prove Branch was guilty of “a crime” based on aiding and abetting “that 

crime,” the People had to prove that (1) the perpetrator committed “the 

crime,” (2) Branch knew the perpetrator intended to commit “the crime,” and 

(3) Branch intended to aid and abet the perpetrator in committing “the 

crime.” The next sentence further emphasized that “[s]omeone aids and 

abets a crime” if he “specifically intends to, and does in fact, aid, facilitate, 

promote, encourage, or instigate the perpetrator’s commission of that crime.” 

(Italics added.)

As applied to the attempted murder charge, we believe any reasonable 

juror would have understood this to mean that Branch could not be convicted 

4 The trial court did not instruct the jury with the last bracketed 

sentence of CALCRIM No. 400, which states: “[Under some specific 

circumstances, if the evidence establishes aiding and abetting of one crime, a 

person may also be found guilty of other crimes that occurred during the 

commission of the first crime.]” As explained in the Bench Notes, this 

sentence should only be given if the prosecution is relying on the natural and 

probable consequences doctrine. (Bench Notes to CALCRIM No. 400.)
11

as an aider and abettor of attempted murder unless he knowingly aided and 

abetted the perpetrator’s commission of attempted murder. “We credit jurors 

with intelligence and common sense . . . and do not assume these virtues will 

abandon them when presented with the court’s instructions.” (People v. 

Coddington (2000) 23 Cal.4th 529, 594.)

Nor did the prosecutor argue a contrary theory at trial, as Branch 

suggests. In explaining the concept of aiding and abetting to the jury, the 

prosecutor argued: “It means these two individuals knowing of Mr. Walker’s 

unlawful purpose, they specifically intended to aid, facilitate, promote, 

encourage, or instigate the commission of the crimes. Pick one. Did they do 

any of those with their conduct?” Branch claims that the prosecutor was 

telling the jury Branch and Henderson were guilty of attempted murder if 

they aided and abetted Walker in any crime, and that the jury should just 

“pick one.” In context, however, the prosecutor’s use of the phrase “pick one”

clearly referred to the alternate types of aiding and abetting conduct he had 

just listed for the jury: aiding, facilitating, promoting, encouraging, or 

instigating. The prosecutor never suggested that Branch could be liable for 

attempted murder even if he only intended to aid Walker in the commission 

of some other crime. And even if the prosecutor had so misstated the law, 

this would be a “trial error” not within the scope of section 1172.6. (People v. 

DeHuff (2021) 63 Cal.App.5th 428, 438.)

Finally, Branch “fails to meet the criterion of section 1172.6, 

subdivision (a)(3) that a petitioner may seek relief only if ‘[t]he petitioner 

could not presently be convicted of murder or attempted murder because of 

changes to Section 188 or 189 made effective January 1, 2019.’ ” (People v. 

Antonelli (2023) 93 Cal.App.5th 712, 721.) The amendments to sections 188 

and 189 made effective January 1, 2019 did not make any change in the law 
12

regarding direct aiding and abetting liability for attempted murder. And 

both before and after these amendments, the law prohibited a conviction 

under this theory based on imputed malice.

We conclude that Branch is ineligible for relief because he was not 

convicted of attempted murder “under the natural and probable consequences 

doctrine” (§ 1172.6, subd. (a)) or any other theory of imputed malice covered 

by the statute. 

DISPOSITION

The order denying Branch’s petition for relief under section 1172.6 is 

affirmed.

BUCHANAN, J.

WE CONCUR:

IRION, Acting P.J.

CASTILLO, J.