Filed 5/12/22 P. v. Gregory CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

WILL ARTHUR GREGORY,

Defendant and Appellant.

 B312425

 (Los Angeles County

 Super. Ct. No. BA154098)

APPEAL from an order of the Los Angeles Superior Court, 

Kathleen Kennedy, Judge. Affirmed.

Mary Jo Strnad, under appointment by the Court of 

Appeal, for Defendant and Appellant. 
2

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Daniel C. Chang and David A. Wildman, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Will Arthur Gregory (defendant) argues that the trial court 

erred in denying his petition for resentencing under Penal Code 

section 1170.95.1 There was no prejudicial error, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

On July 24, 1996, defendant approached Corey Hayes on 

the street outside a liquor store. Defendant was a known 

member of a Bloods gang. Hayes was not a gang member but 

was wearing a blue sweatshirt, the color frequently worn by gang 

members to signify affiliation with the Crips gang, notorious 

rivals of the Bloods. Defendant asked Hayes, “Where you from, 

Blood?” Defendant then shot Hayes dead. 

II. Procedural Background

A. Underlying conviction, sentence and appeal

The People charged defendant with murder (§ 187, subd. 

(a)), and also alleged that in committing the murder defendant 

personally used a firearm (§ 12022.5, subd. (a)). The People also 

alleged that defendant’s 1985 convictions for robbery (§ 211) 

constituted “strikes” within the meaning of our three strikes law, 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 We take judicial notice of the opinion and appellate record 

from the direct appeal in this matter. (People v. Gregory (Apr. 3, 

2000, B124803) [nonpub. opn.].)
3

and also constituted prior serious felonies (§§ 667, subds. (a), (b)-

(j), 1170.12). 

The matter proceeded to a jury trial. The trial court 

instructed the jury that murder is the unlawful killing of a 

human being with malice. The jury was instructed that it could 

convict only if defendant acted with “malice aforethought,” which 

meant the intent to kill (“express malice”) or with conscious 

disregard of how his actions are dangerous to life (“implied 

malice”). The jury was also instructed that murder may be first 

degree or second degree. Because defendant acted alone, the jury 

was not instructed on the theories of felony murder liability (that 

is, a killing committed by someone else when a defendant and 

that person are committing a felony together) or natural and 

probable consequences liability (that is, a killing committed by 

someone else when a defendant is aiding and abetting some 

lesser crime).

The jury convicted defendant of second degree murder and 

found true the allegation that he personally used a handgun. In 

a bifurcated proceeding, the trial court found the prior conviction 

allegations to be true and sentenced defendant to a term of 15 

years to life, tripled to 45 years to life under the three strikes 

law. 

Defendant appealed his conviction. This court affirmed the 

conviction but remanded for resentencing because the trial court 

had failed to sentence defendant for either the firearm 

enhancement (§ 12022.5, subd. (a)), or the serious felony 

enhancement (§ 667, subd. (a)), both of which were mandatory.3

3 On November 29, 2000, the trial court struck the serious 

felony enhancement and imposed the midterm of four years for 

the firearm enhancement. Defendant was resentenced on 
4

B. Petition for resentencing

In April 2021, defendant filed a petition to vacate his 

second degree murder conviction under section 1170.95. 

Defendant checked various boxes on a form petition alleging that 

a complaint, information, or indictment was filed against him 

that allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences 

doctrine; that at trial he was convicted of first or second degree 

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

probable consequences doctrine; and that he could not now be 

convicted of first or second degree murder because of changes 

made to section 188 and section 189, effective January 1, 2019. 

He also checked boxes alleging that he was not the actual killer; 

that he did not, with the intent to kill, aid, abet, counsel, 

command, induce, solicit, request, or assist the actual killer in 

the commission of first degree murder; that he was not a major 

participant in the felony or that he did not act with reckless 

indifference to human life during the course of the crime or 

felony; and that the victim was not a peace officer. He also 

requested counsel.

Without appointing counsel, the trial court summarily 

denied defendant’s petition, reasoning that defendant was 

“ineligible for relief” because “he was convicted of second degree 

murder based on evidence that he shot the victim personally” and 

October 1, 2002, and a five-year term pursuant to section 667, 

subdivision (a) was imposed; the abstract of judgment dated 

October 2, 2002, reflects defendant’s corrected sentence to be 50 

years to life. 
5

that “there was no felony murder or natural [and] probable 

consequence instructions.”4

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court erred in summarily 

denying his section 1170.95 petition. Because our consideration 

of this argument involves questions of law and the application of 

that law to undisputed facts, our review is de novo. (Tsasu LLC 

v. U.S Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)

A person is entitled to relief under section 1170.95 if, as 

relevant here, (1) “[a] complaint, information, or indictment was 

filed against [him] that allowed the prosecution to proceed under 

a theory of felony murder[ or] murder under the natural and 

probable consequences doctrine,” (2) he “was convicted of 

murder,” and (3) he “could not presently be convicted of murder . . 

. because of changes to Section 188 or 189 made effective January 

1, 2019.” (§ 1170.95, subd. (a).) In January 2019, our Legislature 

amended section 188 to provide that “in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought” 

and that “[m]alice shall not be imputed to a person based solely 

on his . . . participation in a crime.” (§ 188, subd. (a)(3).) Our 

Legislature’s purpose was to ensure that “[a] person’s culpability 

for murder [is] premised upon that person’s own actions and 

subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).)

As a threshold matter, we conclude that the trial court 

erred in summarily denying defendant’s petition. In People v. 

Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court held 

4 The record on appeal does not indicate what court 

documents the trial court may have reviewed prior to issuing this 

ruling, and the parties are also silent on this issue. 
6

that if a defendant files a facially compliant petition and requests 

the appointment of counsel, the trial court must appoint counsel 

and entertain further briefing regardless of whether the record of 

conviction unequivocally demonstrates that the defendant is not 

entitled to relief. (Id. at p. 964.) Here, defendant’s petition was 

facially compliant and he requested counsel. Thus, Lewis

dictates the conclusion that the trial court erred in summarily 

denying defendant’s petition. 

However, this finding of error is the first step, not the last. 

That is because Lewis went on to hold that an error in summarily 

denying a section 1170.95 petition is harmless unless the 

defendant can show “‘“it is reasonably probable that if [he or she] 

had been afforded assistance of counsel [and briefing] his [or her] 

petition would not have been summarily denied without an 

evidentiary hearing.”’” (Lewis, supra, 11 Cal.5th at p. 974.) 

We conclude that defendant was not prejudiced by the 

summary denial in this case because the record forecloses 

defendant’s entitlement to relief under section 1170.95 as a 

matter of law, such that the appointment of counsel and further 

briefing from that counsel would not have mattered. In assessing 

whether a defendant seeking relief under section 1170.95 has 

made out a prima facie case warranting an evidentiary hearing, a 

trial court must take the petition’s factual allegations as true and 

ask ‘“whether the petitioner would be entitled to relief if [those] 

allegations were proved.’” (Lewis, supra, 11 Cal.5th at p. 971.) 

‘“However, if the record, including the court’s own documents 

[from the record of conviction] “contain[s] facts refuting the 

allegations made in the petition,” then “the court is justified in 

making a credibility determination adverse to the petitioner.””’ 

(Ibid.)
7

Defendant has not made the requisite prima facie showing 

of entitlement to relief under section 1170.95. This is true for two 

reasons. First, the record establishes as a matter of law that 

defendant was the actual killer. Defendant acted alone, so the 

jury’s guilty verdict necessarily constitutes a finding that he

committed the murder. Along the same lines, because the jury 

was never instructed on a natural and probable consequences 

theory or felony-murder theory, his murder conviction could not 

rest on either theory of vicarious liability; instead, the 

instructions only permitted the jury to convict based on 

defendant’s personal culpability. Second, and contrary to what 

defendant argues on appeal, the record establishes as a matter of

law that defendant acted while personally harboring the 

necessary mens rea. Because the jury could convict defendant of 

murder only if it found that he personally acted with express or 

implied malice, its guilty verdict necessarily encompasses such a 

finding of personally harbored malice. 

Defendant resists this conclusion with what boils down to 

four arguments.

First, he argues the trial court engaged in impermissible 

factfinding to find defendant was the actual killer. For support, 

he cites the recently amended section 1170.95, subdivision (d)(3), 

which authorizes a trial court at the “evidentiary hearing” to 

consider only “the procedural history” from an appellate opinion 

and People v. Langi (2022) 73 Cal.App.5th 972 (Langi). The 

authorities defendant cites are inapt. Section 1170.95 deals with 

the evidentiary hearing; here, we are addressing the prima facie 

stage. In Langi, defendant was one of four individuals who beat 

and robbed a man when one of the four punched the man, who 

fell, hit his head, and died; Langi merely held that the recitation 
8

in the appellate opinion that Langi was the “puncher” was not 

conclusive in light of the involvement of the others as well as the 

jury instructions that allowed the jury to find Langi guilty even if 

someone else threw the punch. (Id. at pp. 975-977.) In this case, 

however, there was only one assailant and no jury instructions 

permitting a jury to find defendant guilty based on someone else’s 

conduct. In short, a trial court does not engage in impermissible 

factfinding by citing the undisputed facts set forth in an appellate 

opinion.5 

Second, defendant argues that the jury was, in fact, 

instructed on a theory of vicarious liability—namely, the natural 

and probable consequences theory—because the jury instruction 

defining murder explained that “implied” “malice” exists when a 

defendant intentionally commits an act, “[t]he natural 

consequences of the act are dangerous to human life,” and when 

“[t]he act was deliberately performed with knowledge of the 

danger to, and with conscious disregard for, human life.” (Italics 

added.) We reject this argument: “The ‘natural consequences’

language in the instruction for second degree murder does not 

transform [a defendant’s] conviction into one for murder under 

the natural and probable consequences doctrine within the 

meaning of section 1170.95.” (People v. Soto (2020) 51 

Cal.App.5th 1043, 1059.) In the implied malice instruction, the 

phrase “natural and probable consequences” is used to hold a 

defendant liable for the “natural and probable consequences” of 

his own act or failure to act; by contrast, the “natural and 

5 In pertinent part, our prior opinion stated: “[Defendant] 

then shot Hayes with a black semiautomatic gun which he pulled 

out from under his shirt. Hayes died from the gunshot wound to 

the chest.”
9

probable consequences” theory of vicarious liability is used to 

hold a defendant liable for another person’s criminal conduct as 

long as the other person’s criminal conduct is a “natural and 

probable consequence” of what defendant agreed to aid and 

abet—and, critically, irrespective of the defendant’s own intent 

regarding that further criminal conduct. As Soto noted, these are 

“distinctly different concepts” (id. at pp. 1056-1057), and, 

like Soto, we decline to equate them.

Third, defendant argues that the true finding on the 

personal use of a firearm does not wholly disqualify him from 

relief because, based on the instruction given, the jury could have 

found the allegation true by concluding only defendant shot 

Hayes intending to hurt or menace him, while not intending to 

kill him. This argument might be relevant if there were more 

than one person involved in this crime, but there is not: 

Defendant acted alone and the jury’s finding of culpability is 

necessarily one based on defendant’s personal acts and mental 

state. Thus, whether the jury also found that defendant 

discharged a firearm causing death is of no matter because

defendant was the only one firing a weapon in this case. What is 

more, because defendant was never charged with this 

enhancement, the absence of a true finding is irrelevant.

Lastly, defendant seems to dispute his guilt, arguing that 

there was only one eyewitness to the crime and no dispositive 

forensic evidence. This is irrelevant to a section 1170.95 petition. 

Section 1170.95 provides a mechanism to overturn certain 

homicide and attempted homicide convictions when they were 

committed by someone else, and are based on a theory of

vicarious liability without any proof of the defendant’s personal 

intent. Section 1170.95 is not an all-purpose “relitigate your 
10

guilt” mechanism.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST