People v. Dudley CA2/7

Filed 9/25/20 P. v. Dudley CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B300919

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA439602)
v.

JAMES DUDLEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed in part; reversed
in part; and remanded with instructions.
Mark R. Feeser, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
 James Dudley appeals from a judgment entered after a jury
convicted him of attempted murder, kidnapping for robbery
(aggravated kidnapping), two counts of false imprisonment, and
two counts of second degree robbery in connection with a 2015
robbery of a marijuana dispensary. As to the false imprisonment
counts, the jury found true a principal was armed with a firearm.
On appeal, Dudley contends there is insufficient evidence of
aggravated kidnapping because his movement of the victim was
incidental to the intended robbery. Dudley also argues his
attempted murder conviction must be reversed because it was
premised on the natural and probable consequences theory of
aider and abettor liability, which pursuant to Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) is no longer a
viable theory of liability. Alternatively, Dudley asserts the
sentence on count 6 for robbery should be stayed under Penal
Code section 6541 because he had a single objective—to commit
the robbery—and there was no evidence he intended to commit
the murder. We reverse Dudley’s conviction of aggravated
kidnapping and order the trial court on remand to stay the
sentence on count 6 for robbery under section 654. We otherwise
affirm and remand for resentencing.2

1 Further undesignated statutory references are to the Penal
Code.
2 Because we reverse Dudley’s conviction of aggravated
kidnapping, we do not address his argument his conviction on
count 5 for false imprisonment must be vacated because it is a
lesser included offense of aggravated kidnapping.

2
 FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
1. The robbery
Anjik Butler and Heidi Van Gundy worked at a medical
marijuana dispensary in Los Angeles. The dispensary had a
front, middle, and back room, with a small hallway that led to a
bathroom in the back. The dispensary had one security camera
outside and three inside, one in each room. Display cases holding
marijuana products and a cash box were located in the middle
room. Additional cash and marijuana products were kept in a
safe in the back room.
The only way to enter or exit the dispensary was through
the front door. The glass door had no handle on either side;
instead, the door could only be opened by using a key to unlock
the door. The door was kept locked during business hours. A key
was kept in the keyhole on the inside of the door to let people in
or out. When a customer rang the doorbell, an employee would
unlock the door to let the customer in, then relock the door. The
dispensary had a single window facing the front of the
dispensary. But both the door and the window were frosted. If
someone inside the dispensary looked through the frosted door,
he or she could only see the silhouette of the person outside.
However, a monitor in the middle room showed who was at the
front door.
On the evening of May 24, 2019, as Van Gundy and Butler
were preparing to close the dispensary, they heard the doorbell
ring. Butler was sitting at the desk in the front room. Van
Gundy unlocked the door, and Edward Cloud, Jr., and a second
man walked in. Neither of the men was wearing a face covering.

3
Before Van Gundy could lock the door again, Dudley entered the
dispensary and pushed Van Gundy up against the wall. He was
wearing a beanie and a bandana that covered half his face.
Cloud then pulled out a gun and told Van Gundy and Butler to go
to the back room where the safe was located. Butler told the men
she was three months pregnant and did not want to cause any
problems.
Cloud and Dudley moved Van Gundy and Butler from the
front room, through the middle room, to the back room. One of
the men ordered Van Gundy to open the safe, which she did.
Dudley took money and marijuana products from the safe and
placed them into a backpack. While he did this, Cloud pointed
his gun at Van Gundy and Butler and ordered them to sit on the
floor and not move, or they would be hurt. One of the men ripped
the telephone off the wall and removed the digital video recorder
and monitor that were on top of the safe.
Dudley and Cloud then directed Van Gundy and Butler to
go to the middle room to help remove the marijuana and
marijuana products in the display cases. The second man had
already started “bagging up” the marijuana and other items. Van
Gundy and Butler helped the men put everything from the
display cases into bags. One of the men asked Butler and Van
Gundy where the rest of the money was, and they pointed to the
cash box in the middle room. The second man took the cash from
the cash box. Van Gundy was “crying and kind of freaking out.”
As Van Gundy and Butler were helping to remove the
marijuana products, the doorbell rang. The three men panicked.
Butler could tell from viewing the monitor in the middle room
that the person at the door was a regular customer. She
suggested to the men she tell the customer they had run out of

4
marijuana, so he would leave without becoming suspicious. After
the three men discussed the matter, Cloud told Butler, “Oh, go.
But if you do anything, like, we have [Van Gundy]. And, you
know, don’t do anything stupid.” Cloud then took Van Gundy’s
bag, which contained her cell phone and tablet computer. Butler
opened the door and told the customer they did not have any
products, but he could come back another day.
While Butler was at the front door talking to the customer,
Dudley started aggressively pushing Van Gundy down the
hallway, “manhandling” her. Van Gundy was afraid if she went
down the hall to the bathroom, she might never come back. The
bathroom had no window, and there was no way out other than
through the hallway to the middle room. By this point Dudley
had pushed Van Gundy about halfway down the hallway, which
was approximately 13 feet long. Van Gundy started to fight back
and pushed Dudley away. As they were fighting, Van Gundy
pulled Dudley’s bandana down and took his beanie off his head.
She saw a cigarette butt fall from under his beanie. Van Gundy
headed back to the middle room and was able to reach the corner
of the middle room, when Cloud came up and hit her in the head
with the gun and “knocked [her] out.”
After the customer left, the three men tried to run out the
front door, but they were struggling to open the door with the
key. Van Gundy regained consciousness and saw the three men
heading to the front of the dispensary. One of the men grabbed
her purse. Van Gundy stood up and yelled for Butler to call the
police. Cloud then turned around and started shooting. Butler
jumped over the counter to avoid getting shot. Van Gundy heard
the gunshots and threw herself onto the floor. One bullet hit
Butler in the back of her right leg. Another bullet shattered the

5
glass of a display case behind Van Gundy. The three men fled,
taking everything from the safe, most of the marijuana, and all
the money.
Immediately after the three men left, Van Gundy ran
outside and asked a man in a neighboring business to call the
police. Butler was taken by ambulance to the hospital.

2. The police investigation
Los Angeles Police Officer Peter Kouvelis and his partner
responded to the call and arrived at the scene. They recovered
from inside the dispensary two bullets, two spent shell casings, a
beanie, and a cigarette butt. The officers also recovered from the
surrounding area multiple items, including a bandana, a shirt, a
sweater, a “hoodie,” and a backpack. The next day a woman saw
a gun in the bushes in front of a house near the dispensary, and
she called the police. A criminalist in the Los Angeles Police
Department Firearm Analysis Unit identified the gun at trial as
a semiautomatic pistol, and he opined the bullets and shell
casings recovered from the dispensary were fired from the gun.
Fingerprint impressions taken from inside the safe at the
dispensary matched those of Dudley. In addition, DNA profiles
from the cigarette butt and the bandana matched the DNA
obtained from Dudley.

3. The gang evidence
In March 2015 Dudley admitted to Los Angeles Police
Officer Dave Vinton that he was a member of the Marvin
Gangster Crips (MGC) street gang. Cloud admitted to a different
police officer he was a member of the MGC street gang.

6
 Los Angeles Police Officer Mario Aride testified as a gang
expert at trial. Officer Aride opined Dudley and Cloud were
active members of the MGC gang. In response to a hypothetical
mirroring the facts of the case, Officer Aride opined the robberies
and shooting were committed for the benefit of and in association
with a criminal street gang. The crimes were committed in
association with the gang because two of the three robbers were
members of the MGC gang. In addition, the crimes would benefit
the gang because the two gang members would return to their
territory and brag about the crimes, creating fear and
intimidation within the area. They would also gain fame and
respect for the gang from reselling the marijuana in their area.3

B. Verdicts and Sentencing
The jury found Dudley guilty of the attempted murder of
Butler (§§ 187, subd. (a), 664; count 1); aggravated kidnapping of
Van Gundy (§ 209, subd. (b)(1); count 3); two counts of false
imprisonment by violence (§ 236; count 4 [Butler] & 5 [Van
Gundy]); and two counts of second degree robbery (§ 211; count 6
[Butler] & 7 [Van Gundy]).4 The jury also found true a principal
was armed with a firearm as to counts 4 and 5 (§ 12022, subd.
(a)(1)). The jury was unable to reach a verdict as to the alleged
firearm and gang enhancements, and the trial court declared a

3 Dudley did not testify or call any witnesses.
4 The information charged Dudley and Cloud with the same
offenses, but Dudley was tried separately. Prior to trial, the trial
court granted Dudley’s motion to dismiss count 2 for the
aggravated kidnapping of Butler pursuant to section 995. During
trial, the court granted Dudley’s motion for acquittal under
section 1118 on count 8 for dissuading a witness.

7
mistrial on those allegations. Pursuant to a negotiated plea
agreement, Dudley admitted the allegation he committed the
second degree robbery of Butler (count 6) for the benefit of, at the
direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)), and as to that count a principal
personally and intentionally discharged a firearm causing great
bodily injury (§ 12022.53, subds. (d), (e)). Under the agreement,
the sentences on both enhancements would be stayed.
The trial court sentenced Dudley to an indeterminate term
of life in prison on count 3 for the aggravated kidnapping of Van
Gundy. The court also sentenced Dudley to a consecutive
aggregate determinate term of 10 years eight months. On count
1 for the attempted murder of Butler, the trial court imposed the
upper term of nine years. On count 4 for the false imprisonment
of Butler, the court imposed a consecutive term of eight months
(one-third the middle term of two years) and stayed a consecutive
term of four months on the firearm enhancement. On count 5 for
the false imprisonment of Van Gundy, the court imposed and
stayed a three-year sentence comprised of the middle term of two
years plus one year for the firearm enhancement. On count 6 for
the second degree robbery of Butler, the court imposed a one-year
consecutive term (one-third the middle term of three years) and
imposed and stayed a sentence of 25 years to life on the firearm
enhancement pursuant to the plea agreement.5 On count 7 for

5 There was a discussion on the record of the court’s power to
dismiss (instead of staying) the punishment for the firearm
enhancement on count 6, but the minute order and abstract of
judgment reflect that the enhancement was stayed, not
dismissed.

8
the second degree robbery of Van Gundy, the court imposed and
stayed the middle term of three years.
Dudley timely appealed.

DISCUSSION

A. There Was Insufficient Evidence To Support Dudley’s
Conviction of Aggravated Kidnapping
1. Standard of review
In evaluating the sufficiency of the evidence to support a
conviction, “‘we review the whole record to determine whether
any rational trier of fact could have found the essential elements
of the crime . . . beyond a reasonable doubt. [Citation.] The
record must disclose substantial evidence to support the verdict—
i.e., evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.’”
(People v. Penunuri (2018) 5 Cal.5th 126, 142; accord, People v.
Westerfield (2019) 6 Cal.5th 632, 713.)

2. Requirement of asportation for aggravated
kidnapping
A person who kidnaps or carries away another person to
commit robbery is guilty of aggravated kidnapping. (§ 209, subd.
(b).) “Kidnapping for robbery requires asportation, i.e.,
movement of the victim that is not merely incidental to the
commission of the robbery and that increases the risk of harm

9
over that necessarily present in the crime of robbery itself.”
(People v. Delgado (2013) 56 Cal.4th 480, 487; see § 209, subd.
(b)(2) [aggravated kidnapping occurs only “if the movement of the
victim is beyond that merely incidental to the commission of, and
increases the risk of harm to the victim over and above that
necessarily present in, the intended underlying offense”]; People
v. Vines (2011) 51 Cal.4th 830, 870 (Vines), overruled on other
grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.)
“The essence of aggravated kidnapping is the increase in
the risk of harm to the victim caused by the forced movement.”
(People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).)
The Supreme Court in People v. Rayford (1994) 9 Cal.4th 1, 12
described the test for asportation necessary for aggravated
kidnapping as a two-prong test, as first set forth in People v.
Daniels (1969) 71 Cal.2d 1119, 1131, footnote 5 (Daniels). The
Rayford court held, “As for the first prong, or whether the
movement is merely incidental to the crime of robbery, the jury
considers the ‘scope and nature’ of the movement.” (Rayford, at
p. 12.) The second prong is “whether the movement subjects the
victim to a substantial increase in risk of harm above and beyond
that inherent in robbery.”6 (Rayford, at p. 13.)
To prove kidnapping for robbery, both parts of the two-
prong test for asportation must be met. (Vines, supra, 51 Cal.4th
at p. 869; People v. Taylor (2020) 43 Cal.App.5th 1102, 1108.)
“These two elements are not mutually exclusive but are
interrelated.” (Vines, at p. 870; accord, Dominguez, supra,

6
In 1997, the Legislature amended section 209, subdivision
(b), to “eliminat[e] the requirement that the movement of the
victim ‘substantially’ increase the risk of harm to the victim.”
(Vines, supra, 51 Cal.4th at p. 869, fn. 20.)

10
39 Cal.4th at p. 1152.) “[E]ach case must be considered in the
context of the totality of its circumstances.” (Dominguez, at
p. 1152.)
In analyzing the scope and nature of the movement for
purposes of the first prong, the jury must consider the distance
the victim is moved, “as well as ‘the context of the environment in
which the movement occurred.’” (Dominguez, supra, 39 Cal.4th at
p. 1151; accord, Vines, supra, 51 Cal.4th at p. 870.) “There is,
however, no minimum distance a defendant must move a victim
to satisfy the first prong.” (Vines, at p. 870.) But the courts have
typically found more significant distances than the six-and-a-half
feet at issue in this case to be insufficient to show asportation.
(See, e.g., Daniels, supra, 71 Cal.2d at pp. 1123-1125 [movement
of victims six to 30 feet around an apartment to rob and rape
them not sufficient for aggravated kidnapping]; People v.
Williams (2017) 7 Cal.App.5th 644, 668 (Williams) [movement of
employees 40 to 60 feet to back of store to commit robberies
merely incidental]; People v. Washington (2005) 127 Cal.App.4th
290, 300-301 (Washington) [movement of employees 35 to 45 feet
from teller area to vault during bank robbery merely incidental];
People v. Hoard (2002) 103 Cal.App.4th 599, 607 (Hoard)
[movement of two employees 50 feet to back of jewelry store
during robbery merely incidental].)
Further, “‘[i]ncidental’ means ‘that the asportation play no
significant or substantial part in the planned [offense], or that it
be a more or less “‘trivial change[] of location having no bearing
on the evil at hand.’”’” (People v. James (2007) 148 Cal.App.4th
446, 454 (James).) Courts have recognized “[i]t is a common
occurrence in robbery, for example, that the victim be confined
briefly at gunpoint or bound and detained, or moved into and left

11
in another room or place.” (Daniels, supra, 71 Cal.2d at p. 1134,
italics omitted; accord, Williams, supra, 7 Cal.App.5th at p. 667
[“‘[T]he Daniels court recognized “‘the absurdity of prosecuting for
kidnapping in cases where the victim is forced . . . to the back of
his store in the course of a robbery.’”’”]; Hoard, supra,
103 Cal.App.4th at p. 603 [“Generally, brief movement inside the
premises where a robbery is being committed is considered
incidental to the crime and does not substantially increase the
risk of harm otherwise present.”].)
As to the second prong—whether the movement increased
the risk of harm to the victim above that present in the
underlying crime—the jury should consider “‘“such factors as the
decreased likelihood of detection, the danger inherent in a
victim’s foreseeable attempts to escape, and the attacker’s
enhanced opportunity to commit additional crimes. [Citations.]
The fact that these dangers do not in fact materialize does not, of
course, mean that the risk of harm was not increased.”’” (Vines,
supra, 51 Cal.4th at p. 870; accord, People v. Simmons (2015)
233 Cal.App.4th 1458, 1471.)

3. There was insufficient evidence Dudley’s movement of
Van Gundy was not merely incidental to the robbery,
and the movement only minimally increased the risk
of harm to Van Gundy
Dudley contends his movement of Van Gundy halfway
down the hallway was only a short distance intended to
accomplish the robbery by preventing Van Gundy from alerting
the customer at the door to the robbery, and thus it was “merely
incidental” to the crime. (Rayford, supra, 9 Cal.4th at p. 13.)
Further, Dudley argues his movement of Van Gundy at most

12
minimally increased the risk of harm to her because she was
moved from the middle room with no windows or door a short
distance back to the hallway, which also had no windows or a
door. Dudley’s contentions have merit.
Here, when the customer appeared at the front door, Van
Gundy and Butler were still helping the three men place the
marijuana products into bags. The robbers agreed to allow
Butler to respond to the customer to prevent the customer from
learning a robbery was in progress and thwarting completion of
the robbery. Butler testified at trial she “cracked [the door] a
little bit so [the customer] wasn’t able to see, like, inside . . . .”
According to Butler, the robbers all went to the back so the
customer could not see them. In this context, moving Van Gundy
down the hallway to keep her hidden from the customer and to
prevent Van Gundy from drawing attention to the robbery
facilitated the ongoing crime.
The People contend the movement of Van Gundy was not
merely incidental to the robbery because the robbery had been
largely accomplished by the time Dudley moved Van Gundy down
the hallway, relying on the observation in James, supra,
148 Cal.App.4th at page 454 that “the fact that the movement of
a robbery victim facilitates a robbery does not imply that the
movement was merely incidental to it.” The facts in James are
distinguishable. There, the Court of Appeal concluded there was
sufficient evidence of asportation where the robbers forced a
maintenance worker at gunpoint into a bingo club to gain access
to the club, then forced him onto the floor while the robbery of the
club continued. (Id. at pp. 456-457.) The court reasoned the
movement of the worker at gunpoint even after his purpose had
been fulfilled (to gain entry) was not merely incidental to the

13
robbery and substantially increased the risk to him by bringing
him into the enclosed bingo club while the robbery was
committed. (Id. at pp. 457-458.) The James court explained,
“[T]he robbery of a business employee does not include the risk
that other individuals will be moved, at gunpoint, from the
relative safety of the outdoors, into the business premises for the
duration of the robbery.” (Id. at p. 457.)
Here, the movement of Van Gundy not only facilitated the
robbery, but was a significant part of the continuing robbery,
which included removal of the marijuana products both before
and after the kidnapping. The facts are more similar to those in
Williams, supra, 7 Cal.App.5th at page 669, Washington, supra,
127 Cal.App.4th at page 299, and Hoard, supra, 103 Cal.App.4th
at page 607, in which the courts found the movement of the
employees to the backs of the stores (Williams and Hoard) and
vault area (Washington) during the robberies were merely
incidental, because the movement facilitated the crimes “with no
other apparent purpose” (Hoard, at p. 607), there was “no excess
or gratuitous movement of the victims over and above that
necessary to obtain the money in the vault” (Washington, at
p. 299), and “the robbers had good reason to move the victims to
the back of the store to achieve their objective” (Williams, at
p. 670). (Cf. People v. Corcoran (2006) 143 Cal.App.4th 272, 279-
280 [evidence supported aggravated kidnapping where movement
of victims into small back office with no windows and a solid door
was “‘excess and gratuitous’” because robbery had been aborted].)
The People also contend Dudley’s movement of Van Gundy
down the hallway increased the risk of harm to her above that
involved in the robbery given the lack of any window or exit from
the hallway, likening the facts here to those in Vines, supra,

14
51 Cal.4th at pages 870 to 871, in which the Supreme Court
concluded the defendant’s movement of four McDonald’s
employees from the front of the store, down a hidden stairway,
and into a locked freezer supported the defendant’s conviction of
aggravated kidnapping. The Supreme Court explained, “[T]he
movement subjected the victims to a substantially increased risk
of harm because of the low temperature in the freezer, the
decreased likelihood of detection, and the danger inherent in the
victims’ foreseeable attempts to escape such an environment.”
(Id. at p. 871.)
The People’s reliance on Vines is misplaced. Although
Dudley moved Van Gundy from the middle room to the hallway
to prevent her from alerting the customer to the robbery, in
contrast to the placement of the employees in a cold freezer in
Vines, here the middle room itself had no windows or door.
Instead, it opened onto the front room, which had a frosted
window and a single exit through a frosted locked door. The risks
to Van Gundy from being moved down the hallway were those
inherent in the robbery itself—that the robbers would use force to
keep her from alerting the customer to the robbery in progress.
Although she was afraid of being moved down the hallway toward
the bathroom, even before the movement she was “crying and
kind of freaking out.”

B. Senate Bill 1437 Does Not Require Reversal of Dudley’s
Conviction of Attempted Murder
On September 30, 2018 Senate Bill 1437 was signed into
law, effective January 1, 2019. Senate Bill 1437 was enacted to
“amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that

15
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Sen. Bill 1437 (2017-2018 Reg.
Sess.) § 1; see People v. Verdugo (2020) 44 Cal.App.5th 320, 325,
review granted Mar. 18. 2020, S260493; People v. Martinez (2019)
31 Cal.App.5th 719, 723 (Martinez).)
New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” Senate Bill 1437 also added section
189, subdivision (e), which provides, “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person 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.”
Dudley contends Senate Bill 1437, although explicitly
applying to convictions of murder, also applies to attempted
murder. We rejected a similar argument in People v. Lopez
(2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 13,

16
2019, S258175.7 (Lopez, at pp. 1103-1107 [“Senate Bill 1437 does
not modify accomplice liability for attempted murder” (italics &
capitalization omitted)]; accord, People v. Munoz (2019)
39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234
[citing Lopez and concluding “Senate Bill 1437 does not apply to
the offense of attempted murder”].) In Lopez, we held “there is
nothing ambiguous in the language of Senate Bill 1437, which, in
addition to the omission of any reference to attempted murder,
expressly identifies its purpose as the need ‘to amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder . . . .’” (Lopez, at p. 1104.) The
legislation’s “obvious intent to exclude attempted murder from
the ambit of the Senate Bill 1437 reform” was further
corroborated by the language of new section 1170.958 and its
legislative history. (Lopez, at pp. 1104-1105.)

7 The Supreme Court granted review in Lopez on the
following issues: “(1) Does Senate Bill No. 1437 (Stats. 2018, ch.
1015) apply to attempted murder liability under the natural and
probable consequences doctrine? (2) In order to convict an aider
and abettor of attempted willful, deliberate and premeditated
murder under the natural and probable consequences doctrine,
must a premeditated attempt to murder have been a natural and
probable consequence of the target offense?” (Supreme Ct.
Minutes, Nov. 13, 2019, p. 1623; Lopez, supra, 38 Cal.App.5th
1087, review granted Nov. 13, 2019, S258175.)
8 Section 1170.95, subdivision (a), “authorizes only those
individuals ‘convicted of felony murder or murder under a
natural and probable consequences theory’ to petition for relief;
and the petition must be directed to ‘the petitioner’s murder
conviction.’ Similarly, section 1170.95, subdivision (d)(1),
authorizes the court to hold a hearing to determine whether to

17
 Moreover, new section 1170.95 provides a procedure for
people convicted of murder to petition the trial court for
retroactive relief if the changes in the law affect their previously
sustained convictions. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.)
In enacting this procedure, “the Legislature intended convicted
persons to proceed via section 1170.95’s resentencing process
rather than avail themselves of Senate Bill 1437’s ameliorative
benefits on direct appeal.” (Martinez, supra, 31 Cal.App.5th at
p. 728; accord, People v. Cervantes (2020) 46 Cal.App.5th 213,
221; People v. Anthony (2019) 32 Cal.App.5th 1102, 1153.)
Therefore, even if Dudley were eligible for relief, he could only
obtain relief pursuant to the procedure set forth under section
1170.95, not on direct appeal.

C. The Trial Court Erred by Not Staying the Sentence for
Robbery of Butler Under Section 654
1. Applicable law
Section 654, subdivision (a), provides in pertinent part, “An
act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” “‘“Whether a course of criminal conduct is divisible
and therefore gives rise to more than one act within the meaning
of section 654 depends on the intent and objective of the actor. If
all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more

vacate ‘the murder conviction.’” (Lopez, supra, 38 Cal.App.5th at
p. 1105.)

18
than one.”’” (People v. Capistrano (2014) 59 Cal.4th 830, 885,
overruled on another ground by Hardy, supra, 5 Cal.5th at
p. 104; accord, People v. Jackson (2016) 1 Cal.5th 269, 354.)
“Intent and objective are factual questions for the trial
court, which must find evidence to support the existence of a
separate intent and objective for each sentenced offense.” (People
v. Jackson, supra, 1 Cal.5th at p. 354; accord, People v.
Capistrano, supra, 59 Cal.4th at p. 886.) But where, as it is here,
“those facts are undisputed . . . the application of section 654
raises a question of law we review de novo.” (People v. Corpening
(2016) 2 Cal.5th 307, 312.)

2. Dudley had a single criminal objective—to commit a
robbery
In sentencing Dudley to a consecutive term on count 6 for
the robbery of Butler, the trial court found Dudley had separate
criminal intents for the robbery and the attempted murder,
noting “[t]he robberies were exceptionally violent” and the
“[v]iolence went far beyond that which was necessary to
accomplish the goal of stealing from the dispensary.” Dudley
argues he had a single criminal objective—commission of the
robbery—not the commission of the attempted murder, for which
Dudley was convicted on an aiding abetting theory that Cloud’s
attempt to kill Butler was a natural and probable consequence of
the robbery. Dudley’s contention has merit.
The holding in People v. Bradley (2003) 111 Cal.App.4th
765 (Bradley), relied on by Dudley, is directly on point. There,
the female defendant was part of a plan for her to “entice some
prosperous-looking customer into leaving a casino so her two
male accomplices could rob him.” (Id. at p. 767.) Although the

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defendant successfully lured the customer out of the casino and
the male accomplices were able to enter the customer’s car and
steal his jewelry and money, the plan went awry when the
robbers learned the customer did not own the car he was driving.
(Id. at pp. 767-768.) In response, one of the robbers beat the
customer with a firearm and shot him in the upper torso. (Id. at
p. 768.) As here, the defendant was convicted of robbery, as well
as attempted murder as an aider and abettor of the robbery
based on the natural and probable consequences doctrine. (Ibid.)
The Court of Appeal reversed the trial court’s imposition of
consecutive sentences for robbery and attempted murder, holding
the defendant “had a single criminal objective—the robbery of
[the customer].” (Id. at p. 771.) As the Bradley court explained,
the defendant “was unaware that second crime was occurring
until after it was completed and thus didn’t have an opportunity
to prevent or even protest its commission. As a result, there
simply was no evidence [she] exhibited the more dangerous
mental state warranting a consecutive sentence under . . . section
654.” (Ibid.)
The Bradley court distinguished People v. Nguyen (1988)
204 Cal.App.3d 181 (Nguyen), relied on by the People. In
Nguyen, the Court of Appeal concluded section 654 did not bar
imposition of consecutive sentences for robbery and attempted
murder where the attempted murder conviction was based on the
natural and probable consequences doctrine. (Nguyen, at pp. 187,
193.) As the Bradley court explained, however, “[T]he Nguyen
court did not confront nor expressly discuss whether that aider
and abettor could legitimately be found to have entertained
multiple objectives and thus legitimately receive consecutive
sentences for those two offences.” (Bradley, supra,

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111 Cal.App.4th at p. 771.) Bradley also distinguished Nguyen
on the basis there was evidence the defendant there “actively
encouraged the shooter to kill the victim.” (Ibid.) As the Nguyen
court described the shooting, “The victim heard Nguyen shout a
Vietnamese battle phrase used when ‘someone was to kill or be
killed.’ Nguyen’s crime partner then kicked the clerk in the ribs
and shot him in the back, fortunately not fatally.” (Nguyen, at
p. 185.)
The People’s reliance on People v. Cummins (2005)
127 Cal.App.4th 667, 681-682, is likewise misplaced. In
Cummins, the Court of Appeal upheld the imposition of
consecutive sentences imposed on the defendant for robbery,
kidnapping for the purpose of carjacking, and attempted murder
under the natural and probable consequences doctrine. However,
unlike here, the defendant actively participated in the attempted
murder, driving the victim with the perpetrator to the location of
the attempted murder, ordering the victim to walk to the edge of
the cliff, directing the victim not to turn around or he would be
shot, and then standing on the edge of the cliff while the
perpetrator pushed the victim over the edge. (Id. at p. 678.) As
the Cummins court observed, “The jury could reasonably find [the
defendant] helped lead the victim to a dangerous area with the
knowledge and intent that harm would come to him.” (Ibid.) The
court concluded the defendant had separate objectives in robbing
and attempting to kill the victim, explaining “[the defendant]
shared the objectives of [the perpetrator], that is to rob the victim
and to keep him from pointing out his attackers.” (Id. at p. 682.)
Here, Cloud started to shoot after Van Gundy yelled for
Butler to call the police. Although it was reasonable for the jury
to have concluded Cloud’s shooting was a natural and probable

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consequence of an employee calling for help during an armed
robbery, unlike Nguyen and Cummins, there was no evidence
Dudley encouraged or instigated the shooting. The People point
to Dudley’s violence in pushing Van Gundy against a wall when
he entered the dispensary, then violently moving her down the
hallway when the customer was at the front door. But Dudley’s
violent treatment of Van Gundy during the robbery does not
show his intent that Cloud start shooting and attempt to kill
Butler as they were leaving the dispensary. Rather, the evidence
supports a finding, as in Bradley, the shooting was a “deviation
from the original plan.” (Bradley, supra, 111 Cal.App.4th at
p. 772.) Because there was no evidence Dudley had a separate
criminal objective to kill Butler, the trial court should have
stayed the sentence on count 6 for the second degree robbery of
Butler pursuant to section 654.

DISPOSITION

Dudley’s conviction on count 3 for aggravated kidnapping is
reversed. In all other respects the convictions are affirmed. The
matter is remanded for the trial court to stay the sentence on
count 6 for the second degree robbery of Butler under section 654
and to resentence Dudley.

FEUER, J.
We concur:

PERLUSS, P. J. SEGAL, J.

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