Filed 2/1/22 P. v. Davis CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

COLLIN ROBERT DAVIS,

Defendant and Appellant.

 B312149

 (Los Angeles County

 Super. Ct. No. NA068464)

APPEAL from an order of the Superior Court of Los 

Angeles County, James D. Otto, Judge. Affirmed in part and

reversed in part.

Eric R. Larson, 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, Idan Ivri and Wyatt E. Bloomfield, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________
2

Defendant Collin Robert Davis, found guilty by a jury in 

2008 of one count of second degree murder and three counts of 

premeditated attempted murder, challenges the trial court’s 

denial of his petition to be resentenced pursuant to Penal Code 

section 1170.95.1

When the trial court denied Davis’s petition for 

resentencing, section 1170.95 did not provide relief for 

individuals convicted of attempted murder. Although recent

amendments to this statute now permit defendants who are 

convicted of attempted murder to petition for resentencing, the 

jury in this case found that Davis personally intended to kill his 

victim, rendering him ineligible to be resentenced under the 

revised statute as a matter of law.

We reach a different result with respect to Davis’s second 

degree murder conviction. The trial court rejected his petition for 

resentencing on the second degree murder conviction at the 

prima facie stage even though the jury was instructed on the 

natural and probable consequences theory of murder, which is 

now precluded by section 1170.95. Further, during the 

proceedings below, the trial court indicated it was applying a 

lower—now impermissible—standard of proof in evaluating 

Davis’s petition. The Attorney General concedes that the trial 

court erred in denying the second degree murder petition at the 

prima facie stage and that its error is not harmless.

We therefore affirm the denial of Davis’s petition for 

resentencing with respect to his attempted murder convictions, 

and reverse and remand the petition for his second degree 

1 Subsequent undesignated statutory citations are to the 

Penal Code.
3

murder conviction, with instructions that the trial court apply the 

standard of proof now made applicable to section 1170.95 

petitions by virtue of recent amendments to that section.

FACTUAL AND PROCEDURAL SUMMARY

A. Factual Summary from Prior Opinion

In our prior opinion involving Davis’s direct appeal (People 

v. Davis (Jul. 29, 2009, B207319) [nonpub. opn.] (Davis I)), we 

described the facts of the case, which we now summarize.2

On October 18, 2005, Steven Tan, Abel Osuna, Frank 

Salinas, and another man, were arguing at a restaurant in Long 

Beach. According to the statement he later made to the police, 

Tan had been approached by the group and they asked him for 

his gang affiliation. Tan fled and ran to a friend’s house where 

he telephoned Davis to meet him at the restaurant. Once Tan 

returned to the restaurant, he found Davis, as well as Osuna, 

Salinas, and the unidentified man. The group drew firearms and 

Tan and Davis fled. After they arrived back at Tan’s house, 

Davis told Tan to stay home. Tan later told the police he thought 

Davis intended to retaliate. (Davis I, supra, B207319.)

Tan also told the police that later that evening Davis called 

him and said, “Don’t worry about those Mexicans and don’t go to 

[the restaurant].” Davis added, “They won’t mess with you.” 

Davis also said he “and ‘Little Man’ and like two or three more

other people” were with him. When the police asked Tan 

whether Davis said “how he took care of those Mexicans,” Tan 

replied, “They shot at them.” Tan further told the police that 

2 In evaluating a section 1170.95 petition, we may rely on 

the record of conviction including this court’s prior opinions. 

(People v. Lewis (2021) 11 Cal.5th 952, 972.)
4

Davis talked about the shooting a few days later, stating Davis 

and a couple of his friends shot at them while Davis stayed in the 

car. Tan also told the police that Davis said, “almost everybody 

had a gun.” (Davis I, supra, B207319.)

According to Salinas, after he and his friends left the 

restaurant, he was approached by two men while he was riding 

around on his bicycle, neither of whom he recognized, one of 

whom was wearing a bandana covering his face. One of the men 

asked whether Salinas had information on a local gang, and 

Salinas said he did not. About 15 minutes later, Salinas heard 

five or six gunshots. (Davis I, supra, B207319.)

According to victims Katherine Reyes and Jose Velasquez, 

they were walking near the restaurant that evening when they 

saw two or three men crossing the street, one of whom wore a 

white bandana covering his face. One member of the group 

shouted, “Shoot” and the group started shooting at them. Reyes 

heard about 15 gunshots, while Velasquez heard five or six. 

Reyes told the police she saw a gun in the hand of the man 

wearing the white bandana, and Velasquez testified he saw the 

same man shoot at them. Although they fled, Reyes was grazed 

by a bullet and Velasquez sustained multiple gunshot wounds to

each leg. (Davis I, supra, B207319.)

Others were shot as well. At about 7:30 p.m. the same 

night, the police found Victor Gonzalez outside an apartment 

nearby. He had been shot once in the abdomen and later died as 

a result of blood loss. Another victim, Martin Morales, was shot 

in the abdomen the same night. Sometime after 7:30 p.m., the 

police found him bleeding on a bed in an apartment about two 

blocks from the location of Gonzalez’s body. Morales survived. 

(Davis I, supra, B207319.)
5

When the police interviewed Davis on December 15, 2005,

he initially denied being in the vicinity, but then admitted he in 

fact drove to that location at the request of “Little Man,” and 

someone else he did not know who wore a “rag” over his face. 

Davis denied knowing what was planned. (Davis I, supra, 

B207319.)

B. Davis’s Conviction and Prior Appeal

On March 24, 2008, the jury found Davis guilty of second 

degree murder of Gonzalez (§ 187, subd. (a)), and three counts of 

premeditated attempted murder of Reyes, Velasquez, and 

Morales (§§ 187, subd. (a), 664). The jury also found firearm and 

gang allegations to be true (§§ 186.22, subd. (b), 12022.53, 

subds. (d), (e)(1)).

On April 7, 2008, Davis was sentenced to state prison for 45 

years to life.

On July 29, 2009, this court reversed one of the three 

attempted murder convictions (as to Morales) on Davis’s direct 

appeal for insufficient evidence. We otherwise affirmed the 

judgment. (Davis I, supra, B207319.)

C. Petition for Resentencing and the Trial Court’s 

Order

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017-2018 Reg. Sess.), which, among other revisions to the law 

of murder, abolished the natural and probable consequences 

doctrine in cases of murder. (See People v. Gentile (2020) 10 

Cal.5th 830, 842-843.) The legislation also enacted section 

1170.95, which established a procedure for vacating murder 

convictions for defendants who could no longer be convicted of 

murder because of the changes in the law and resentencing those 

who were so convicted. (Stats. 2018, ch. 1015, § 4.)
6

Recently enacted Senate Bill No. 775 (2021-2022 Reg. 

Sess.), effective January 1, 2022, amended section 1170.95 to, 

among other things, permit those convicted of attempted murder 

to petition for resentencing under that newly-amended section.

On January 4, 2019, Davis, represented by counsel, filed a 

petition for resentencing pursuant to section 1170.95. In his 

petition, he alleged that he had been convicted of second degree 

murder and two counts of attempted murder under the natural 

and probable consequences doctrine, that he could not now be 

convicted of murder or attempted murder, and requested the 

appointment of counsel.

On March 16, 2021, following briefing by both parties, the 

trial court held a hearing, heard arguments, and took the matter 

under submission. At a further hearing on March 30, 2021, the 

court denied the petition on several grounds: (1) Davis had failed 

to make a prima facie case as to his murder conviction because 

“he was tried on an express[ ] malice murder theory in addition to 

a natural and probable consequences theory”; (2) that even had a 

prima facie showing been made, “the People have proved to the 

court at the hearing beyond a reasonable doubt based on the 

record of conviction that he was/or would have been convicted on 

the theory of express[ ] malice”; and (3) Davis was not entitled to 

relief as to his attempted murder convictions because section 

1170.95 does not apply to the crime of attempted murder.

Davis timely appealed.

DISCUSSION

A. Davis Is Ineligible for Resentencing of His Attempted 

Murder Convictions

Davis argues the trial court erred in denying his petition at 

the prima facie stage because it erroneously held that Senate Bill 
7

No. 1437 did not apply to the crime of attempted murder. This 

issue is now settled by the passage of Senate Bill No. 775, and 

thus, the trial court erred insofar as it did not predict the passage 

of this bill. What remains to be decided is whether this error was 

harmless under the standard set forth in People v. Watson (1956) 

46 Cal.2d 818. (See People v. Lewis, supra, 11 Cal.5th at pp. 973-

974.)

To be convicted of attempted murder, a jury must find a 

specific intent to commit the crime as well as a direct but 

ineffectual act done toward its commission. (§ 29.2, subd. (a); 

People v. Campos (2007) 156 Cal.App.4th 1228, 1242.) Express 

malice is required for attempted murder. (People v. Beck (2005) 

126 Cal.App.4th 518, 522.)

Senate Bill No. 1437, which became effective January 1, 

2019, amended section 189, which defines the degrees of murder, 

to limit murder liability based on felony murder or a natural and 

probable consequences theory for a person who: (1) was the actual 

killer; (2) though not the actual killer, acted “with the intent to 

kill” and “aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted the actual killer” in the 

commission of first degree murder; or (3) was “a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of 

Section 190.2.” (§ 189, subd. (e).)

Senate Bill No. 1437 also amended the definition of malice 

in section 188 to provide that “[m]alice shall not be imputed to a 

person based solely on his or her participation in a crime.” 

(§ 188, subd. (a)(3).) As we have stated, the effect of this 

amendment was to abolish the natural and probable 

consequences doctrine in cases of murder. (People v. Larios
8

(2019) 42 Cal.App.5th 956, 964, review granted Feb. 26, 2020, 

S259983.)

In addition to amending sections 188 and 189, the 

Legislature enacted section 1170.95 (Stats. 2018, ch. 1015, § 4, 

eff. Jan. 1, 2019) which authorizes a person convicted of felony 

murder or murder under a natural and probable consequences 

theory to file a petition with the sentencing court requesting to

vacate the conviction and be resentenced. (§ 1170.95, former 

subd. (a).)

During the pendency of this appeal, section 1170.95 was 

amended by Senate Bill No. 775. Among other changes, Senate 

Bill No. 775 amends section 1170.95 by “[c]larif[ying] that 

persons who were convicted of attempted murder or 

manslaughter under a theory of felony murder and the natural 

probable consequences doctrine are permitted the same relief as 

those persons convicted of murder under the same theories.” 

(Stats. 2021, ch. 551, § 1, subd. (a).)3

Contrary to the assertions made by Davis in his petition

and on this appeal, the record of conviction establishes that he

was convicted under an express malice theory on the attempted 

murder charges. On those charges, Davis’s jury was instructed 

that it must find him guilty only if “[1] [Davis] took at least one 

direct but ineffective step toward killing (another person) [and] 

[2] [Davis] intended to kill that (person).” (Italics added.) Thus, 

when the jury convicted Davis, it found he acted with an intent to 

3 The amendment also codifies certain holdings of People v. 

Lewis, supra, 11 Cal.5th 952, reaffirms the burden of proof at a 

resentencing hearing, and addresses the evidence a court may 

consider at a resentencing hearing. (Stats. 2021, ch. 551, § 1, 

subds. (b)-(d).)
9

kill, and intent to kill is the equivalent of express malice. (People 

v. Saille (1991) 54 Cal.3d 1103, 1114-1115). Express malice 

remains a valid theory of murder following Senate Bill Nos. 775

and 1437. (§ 188, subd. (a)(1).)

Davis therefore cannot establish that he “could not 

presently be convicted of . . . attempted murder because of 

changes to Section 188 or 189 made effective January 1, 2019,” as 

required by amended section 1170.95, subdivision (a)(3). (Stats. 

2021, ch. 551, § 2.) The trial court’s error—created by the 

passage of Senate Bill No. 755—was therefore harmless because, 

as a matter of law, Davis cannot establish that he is entitled to 

relief under section 1170.95, as amended by Senate Bill No. 775.

C. The Trial Court Concededly Erred in Finding Davis 

Ineligible for Resentencing of His Murder Conviction

As we have discussed above, one effect of Senate Bill 

No. 1437 was to abolish the natural and probable consequences

doctrine in cases of murder and to provide a resentencing 

procedure for those convicted under this theory. (People v. 

Larios, supra, 42 Cal.App.5th at p. 964, review granted.)

On Davis’s murder charge, the jury was instructed on both

aider and abettor and natural and probable consequences

theories of murder liability. The jury was instructed it must find 

Davis guilty of murder so long as:

“1. The crime of assault with a firearm was committed;

“2. That the defendant aided and abetted [those] crimes;

“3. That a co-principal in that crime committed the crime 

of assault with a firearm; and

“4. The crime of murder was a natural and probable 

consequence of the commission of the crime of assault with a 

firearm.” (CALJIC No. 3.02.)
10

The Attorney General concedes that, in light of the above 

jury instructions, Davis was convicted under a now invalid theory 

of murder liability. We agree that Davis successfully pled a 

prima facie case for resentencing under section 1170.95. The 

trial court thus erred in denying Davis’s petition at the prima 

facie stage and by failing to issue an order to show cause. (See 

Stats. 2021, ch. 551, § 2; see also People v. Lewis, supra, 11

Cal.5th at pp. 971-972.)

The Attorney General also concedes, and we agree, that 

this error was not harmless on this record. In its order denying 

Davis’s petition, the trial court held, “the People have proved to 

the court at the hearing beyond a reasonable doubt based on the 

record of conviction that he was/or would have been convicted on 

the theory of express[ ] malice.” (Italics added.) Also, during the 

hearing on Davis’s petition, the trial court characterized its task 

as determining “whether there was sufficient evidence in my 

mind that he could be proven guilty beyond a reasonable doubt by 

. . . actual malice based on the record of conviction.”4 (Italics 

added.)

Among the other changes we have discussed, Senate Bill 

No. 775 clarifies the standard of proof applicable to evaluating 

section 1170.95 petitions: “A finding that there is substantial 

evidence to support a conviction for murder, attempted murder, 

4 The trial court similarly stated “the People have just 

submitted to me on the record of conviction they have the burden 

of proof beyond a reasonable doubt, but I[,] under that section

[1170.95,] am tasked with making a factual finding as to whether 

they did or could have proved that the defendant is guilty of 

murder under an implied malice theory or under an actual malice 

theory for that matter.” (Italics added.)
11

or manslaughter is insufficient to prove, beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.” 

(§ 1170.95, subd. (d)(3), italics added; Stats. 2021, ch. 551, § 2.)5

Because the trial court repeatedly used the conditional 

“could” during its characterization of the People’s burden, both in 

its order and during the hearing below, it is unclear whether the 

trial court applied the lower—now impermissible—standard of 

proof in evaluating Davis’s petition.

It is reasonably probable that the trial court would not 

have denied Davis’s petition at the prima facie stage had it 

applied the higher standard of proof now applicable to section 

1170.95 petitions as amended by Senate Bill No. 775. (See People 

v. Lewis, supra, 11 Cal.5th at pp. 973-974 [denial of § 1170.95 

petition evaluated under the standard of prejudice described in 

People v. Watson, supra, 46 Cal.2d 818].) Accordingly, the trial 

court’s error in denying Davis’s petition was not harmless.

5 At the time the trial court denied Davis’s petition, there 

was a division among appellate courts as to the standard trial 

courts should apply in deciding a petition at the last stage of 

review. Senate Bill No. 775 has resolved this issue by providing 

that the prosecution bears the burden “to prove, beyond a 

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

under California law as amended by the changes to Section 188 

or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3), 

italics added; Stats. 2021, ch. 551, § 2.)
12

DISPOSITION

That portion of the trial court’s order denying the petition 

as to the attempted murder convictions is affirmed. That portion 

of the trial court’s order denying the petition as to the murder 

conviction is reversed.

NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.