People v. Underwood CA2/5

Filed 11/24/20 P. v. Underwood CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B304411

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. A371643)

v.

ANDRE UNDERWOOD,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Reversed and
remanded.
Alex Coolman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Senior
Assistant Attorney General, Eric A. Swenson, Supervising
Deputy Attorney General, Felicity Senoski, Deputy Attorney
General, for Plaintiff and Respondent.
__________________________

Defendant and appellant Andre Underwood appeals
from the trial court’s postjudgment order denying his
petition for resentencing pursuant to Penal Code section
1170.951 and Senate Bill No. 1437 (Senate Bill 1437).
Section 1170.95 provides for vacatur of a murder conviction
obtained under either the natural and probable
consequences doctrine or the felony murder theory of
liability, if the defendant was not the actual killer, did not
intend to kill, and was not a major participant in an
underlying felony who acted with reckless disregard for
human life. (People v. Martinez (2019) 31 Cal.App.5th 719,
723.)
Underwood contends the trial court erred by
summarily denying his petition on the basis that he was the
actual killer and therefore ineligible for relief as a matter of
law.
We reverse and remand to the trial court for further
proceedings.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

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 FACTS AND PROCEDURAL HISTORY2

Murder Conviction

In 1981, Underwood was involved in the robbery and
killing of Joe Miyoshi, who died of a gunshot wound to the
chest.
Underwood was tried by jury. The prosecution
presented evidence of the following: Four young men
decided to commit a robbery and took a 12-gauge shotgun
with them to accomplish the crime. They happened upon
Miyoshi in a van in an alleyway. One of the young men
pointed the gun at Miyoshi and he threw money out of the
window. Miyoshi then tried to back up the van and escape,
but hit a telephone pole. He opened the van door and threw
out more money. He begged the young man holding the
shotgun not to shoot him. One of the young men saw

2 The People’s request for judicial notice, filed
September 3, 2020, is denied, as the appellate court record in
case No. 44269 was destroyed in 2013 in the normal course
of business. The People are reminded that, pursuant to
California Rules of Court, rule 8.252(a)(3), “[i]f the matter to
be noticed is not in the record, the party must attach to the
motion a copy of the matter to be noticed or an explanation
of why it is not practicable to do so.” However, we take
judicial notice of the Los Angeles Superior Court record in
People v. Underwood, case No. A371643, and the appellate
court’s prior opinion in People v. Underwood (1986) 181
Cal.App.3d 1223 (Underwood), from which the facts are
drawn.

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Underwood, who was walking through the alley, and called
him over to them. Underwood joined them and took the
shotgun. He held Miyoshi at bay as the others ran. One of
the young men looked back and saw Underwood shoot
Miyoshi in the chest. Underwood then fled with the others
to a friend’s house, where they divided Miyoshi’s money
between them. (Underwood, supra, 181 Cal.App.3d at
p. 1228.) Under questioning on two occasions by officers
investigating the robbery and murder, Underwood gave
varying accounts, but consistently admitted happening upon
the robbery in progress, arriving only after Miyoshi had
surrendered most, if not all, of the money. Underwood
consistently denied participation in carrying out the robbery
and murder, but he admitted taking a share of the money.
(Id. at p. 1229.)
Underwood was tried with one co-defendant. At trial,
the prosecutor proceeded on the alternative theories that
Underwood was either (1) guilty through a felony-murder
theory of liability (which could only result in a verdict of first
degree murder), or (2) the direct perpetrator (in which case
he could be found guilty of either first or second degree
murder). She argued: “[T]he underlying theory of the
People’s case is the felony murder rule. [¶] Felony murder
rule says that the unlawful killing of a human being,
whether intentional or unintentional and accidental, which
occurs as a result of the commission of a crime such as
robbery, . . . that’s murder. The killing is murder.” “But as
regards defendant Underwood, it is the position of the People

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that the murder of [the victim] was a murder in the first
degree, whether you get there by way of the felony murder
rule -- in other words that it was done during a robbery -- or
you get there because not only is it an unlawful killing of a
human being with malice aforethought, but it has the
additional two elements: Deliberation and premeditation,
which the law says makes the crime first degree.” “[T]he
evidence is very clear that it was defendant Underwood . . .
whose finger was on that trigger . . . .”
Defense counsel argued that Underwood was either
guilty of receiving stolen property, or an accessory after the
fact to the robbery.
As relevant here, the jury was instructed regarding
principals to a crime (CALJIC No. 3.00), aiding and abetting
(CALJIC No. 3.01), murder (CALJIC No. 8.10), malice
aforethought (CALJIC No. 8.11), deliberate and
premeditated murder (CALJIC No. 8.20), first degree felony
murder (CALJIC No. 8.21), first degree felony murder in
pursuance of a conspiracy (CALJIC No. 8.26), first degree
felony murder aider and abettor (CALJIC No. 8.27),
unpremeditated murder of the second degree (CALJIC No.
8.30), the duty of the jury as to the degree of murder
(CALJIC No. 8.70), doubt whether the offense was first or
second degree murder (CALJIC No. 8.71), and unanimous
agreement as to the offense—first or second degree murder
(CALJIC No. 8.74).
The jury found Underwood guilty of second degree
murder (§ 187, subd. (a)) and robbery (§ 211). It found true

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the allegation that a principal used a firearm in the
commission of both crimes (§ 12022, subd. (a)), but was
unable to reach a verdict as to the allegations that
Underwood personally used a firearm in the offenses.
(§§ 12022.5, 1203.06, subd. (a)(1).)
Underwood was sentenced to 15 years to life in prison
for murder, plus one year for the firearm allegation in that
count. The court imposed and stayed a sentence of one-third
of the mid term of one year on the robbery count, plus one
year for the firearm allegation.

Proceedings in The Court of Appeal and the Supreme
Court

The Court of Appeal affirmed the judgment, but
remanded the matter to the trial court for preparation of a
new abstract of judgment that would correctly reflect
Underwood’s custody credits. Subsequently, the Supreme
Court granted Underwood’s request for a hearing and
transferred the matter back to the appellate court for
reconsideration in light of People v. Croy (1985) 41 Cal.3d 1
(Croy).
In Croy, the Supreme Court held that the trial court
erred by giving an aiding and abetting instruction that did
not require the jury to find that the defendant shared the
perpetrator’s intent to commit or facilitate the commission of
the robbery at issue in that case. (Croy, supra, 41 Cal.3d at
pp. 11–12.) The Supreme Court further held that the error

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was prejudicial, and reversed a murder and an attempted
murder conviction in addition to the robbery conviction,
because the jury could have found the defendant guilty of the
murder charges on the basis of a felony-murder theory of
liability for which the robbery charge was the predicate
crime. (Id. at pp. 11–21.)
Following transfer back in Underwood’s case (in which
the trial court utilized the same faulty aiding and abetting
instruction that the trial court had given in Croy), the Court
of Appeal found Croy distinguishable with respect to the
robbery conviction: “In the case at bench, defendant does not
deny making the statements attributed to him which placed
him at the scene of the offenses and which carried the
admission that he had taken a share of the victim’s money.
Unlike the defendant in Croy, defendant here was not a
passive bystander to the robbery which led directly to the
victim’s death. As noted above, his participation in the
crimes went well beyond ‘aiding’ their completion. In the
language of Croy, we find that there was ‘no plausible basis
on which the jury could find that the defendant acted for
another purpose’ (Croy, supra, 41 Cal.3d at p. 16.), or that he
was ‘incapable of recognizing his obligation to adhere to
society’s laws,’ due to prior intoxication. (Id., at p. 20.)”
(Underwood, supra, 181 Cal.App.3d at pp. 1235–1236.) The
court held that Underwood’s culpability as a perpetrator of
the robbery had been established as a matter of law and the
jury instructions on aiding and abetting were therefore

7
inapplicable and unnecessary as to that charge. (Id. at
p. 1235.)
Moving to the murder conviction, the appellate court
held that, having found Underwood to be an intentional
perpetrator of the robbery as a matter of law, it necessarily
followed that he was guilty of first degree felony murder.
(Underwood, supra, 181 Cal.App.3d at p. 1237.) Although
the court’s determination was inconsistent with the jury’s
verdict of second degree murder, it concluded that the
inconsistency was likely an act of leniency on the part of the
jury. (Ibid.) The verdict would stand, because “[w]here a
defendant is guilty of first degree felony murder as a matter
of law, there is no reason to reverse a second degree verdict
which is more favorable to defendant than warranted by the
evidence.” (Ibid.)
The Court of Appeal again affirmed the judgment, but
remanded the matter to the trial court for preparation of a
new abstract of judgment that would correctly reflect
Underwood’s custody credits.

Petition for Resentencing

On July 1, 2019, Underwood filed a petition for vacatur
of the murder conviction and resentencing under section
1170.95. He utilized a standardized form, and attached the
verdicts and the abstract of judgment in his case.
Underwood did not indicate whether he was convicted under
a natural and probable consequences or felony murder

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theory of liability, and did not indicate that he was not the
killer, did not act with intent to kill, and was not a major
participant in the underlying robbery who acted with
reckless indifference to human life. He requested that
counsel be appointed to him.
The People filed a response on August 30, 2019,
contending that Underwood was ineligible for relief because
he was the actual killer, as evidenced by the record of
conviction, and that Senate Bill 1437 was unconstitutional.
Attached to the response were the Court of Appeal’s opinion
in Underwood, and several documents relating to the
constitutionality of Senate Bill 1437, which are not pertinent
to the present appeal.
The trial court appointed counsel to Underwood on
August 30, 2019.
At a hearing on November 18, 2019, the trial court
provisionally denied Underwood’s petition, based on its view
that the Court of Appeal’s prior opinion indicated
Underwood was the actual killer. The trial court stated: “I
want to make the record clear; I do not, at this point, find a
prima facie case. I’ve appointed counsel prior to having the
People’s response and prior to having a copy of the appellate
court opinion in this case, and frankly, had I had the
appellate court opinion prior to receiving the petition or
shortly after receiving the petition, I probably would have
denied it summarily, without appointing counsel or asking
for a reply from the defense, because it appears to me, based
on the appellate court opinion, Mr. Underwood was the

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actual killer in this case.” “[Y]ou have an eye witness, who
apparently testified that [Underwood] was the one that
actually pulled the trigger that killed the victim in this case;
and therefore, whether the shooting happened during the
course of, or subsequent to the robbery, to me, is incidental.
He’s the actual killer. This takes him outside the scope of
1170.95.” “That’s a preliminary record, obviously. If there’s
something you wanted to add, I’ll consider it, but that’s
where I’m at, at the moment.” The court continued the
hearing to January 14, 2020, to allow defense counsel to
reply to the People’s response.
On January 6, 2020, defense counsel filed a reply to the
People’s response, arguing that Underwood had made a
prima facie case for relief. The reply argued that Underwood
had presented sufficient evidence of a prima facie case of
eligibility under section 1170.95, because the jury’s verdict
indicated that it was highly likely that it convicted
Underwood under a felony murder theory of liability, and
conflicting evidence had been presented at trial regarding
which of the men was the shooter.
At the hearing on the section 1170.95 petition,
Underwood’s counsel stated that it was his understanding
that Underwood had been convicted under the felony murder
doctrine. The trial court responded, “Well, I don’t know that
that’s the case, because they came back with a second
[degree murder verdict], and if it was felony murder, it
would have been a first [degree murder verdict]. The court
of appeal expressly acknowledges in its opinion, the only

10
explanation is an attempt for the jury to show leniency in
contravention of the law. So I don’t know if that’s really a
sound position to take, in light of the record of conviction.”
Defense counsel replied that the jury was also hung as to
whether Underwood personally used a gun, and if
Underwood were the killer, he had to have used a gun. He
argued that, to make a prima facie case, a defendant need
only raise an issue of fact that must be resolved, which was
exactly what Underwood had done. The court ruled: “I’ll
deny the 1170.95. I don’t believe a prima facie case has been
established, based upon the record of conviction. [¶] The
court of appeal opinion establishes that he was the shooter.
As the shooter, he is ineligible for relief. The court finds no
prima facie case.”
Underwood timely appealed.

DISCUSSION

On appeal, Underwood contends that the trial court
erred when it found that he was the actual killer based on
the recitation of evidence presented in the Court of Appeal’s
opinion, and therefore ineligible for relief as a matter of
law.3

3 In the People’s response, the Attorney General
asserted that Underwood was required to successfully
petition for habeas corpus before he could petition for
resentencing under section 1170.95, but that, even if a
section 1170.95 petition were the proper vehicle to challenge

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Senate Bill 1437 and Section 1170.95

Through section 1170.95, Senate Bill 1437 created a
process by which a defendant convicted of murder under the
natural and probable consequences or felony murder
doctrine can petition to have his or her conviction vacated
and be resentenced. Section 1170.95 initially requires a
court to determine whether a petitioner has made a prima
facie showing that he or she falls within the provisions of the
statute as set forth in subdivision (a), including that “(1) [a]
complaint, information, or indictment 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) [t]he petitioner was
convicted of first degree or second degree murder following a
trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree
murder[, and] [¶] (3) [t]he petitioner could not be convicted of
first or second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.” (See § 1170.95,
subd. (c).)
If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the

his murder conviction, Underwood was ineligible as a matter
of law because he was the actual killer. However, at oral
argument, the People conceded that Underwood has made a
prima facie showing, based on the fact that the jury was
instructed regarding second degree murder.

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trial court may deny the petition. (People v. Verdugo (2020)
44 Cal.App.5th 320, 323, 329–330, review granted Mar. 18,
2020, S260493.) A petitioner is ineligible for relief under
section 1170.95 as a matter of law if the record shows he or
she was not convicted of murder. (People v. Turner (2020) 45
Cal.App.5th 428, 438 [manslaughter]; People v. Flores (2020)
44 Cal.App.5th 985, 993 [same]; People v. Larios (2019) 42
Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983
[attempted murder].) A petitioner is also ineligible if his
murder conviction was solely predicated on the theory that
he was the perpetrator or a direct aider and abettor. (People
v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted
Mar. 18, 2020, S260410 [actual killer]; People v. Lewis (2020)
43 Cal.App.5th 1128, 1138–1139, review granted Mar. 18,
2020, S260598 [direct aider and abettor, jury not instructed
on natural and probable consequences or felony murder
theory of liability].)
If, on the other hand, a determination of eligibility
requires an assessment of the evidence concerning the
commission of the petitioner’s offense, “the petitioner is
permitted to proceed to the next stage of review under
section 1170.95, subdivision (c). In that next stage, the trial
court must evaluate . . . whether the facts and circumstances
of the offense(s) prevent the petitioner from making ‘a prima
facie showing that he or she is entitled to relief.’ (§ 1170.95,
subd. (c).)” (People v. York (2020) 54 Cal.App.5th 250, 262–
263.)

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 Analysis

Here, the trial court denied Underwood’s petition based
on a misreading of the analysis of the facts and law
underlying his conviction as set forth in a prior appeal. The
Court of Appeal’s prior opinion stated only that a witness
testified that Underwood shot the victim, not that
Underwood actually shot the victim. In fact, the question of
whether Underwood personally used a firearm was before
the jury, and the jury was unable to reach a decision as to
the truth of that allegation. Given that a gunshot wound
undisputedly caused the victim’s death, the jury’s inability to
find Underwood personally used the gun necessarily means
there was no jury finding that he was the actual killer.
Thus, the appellate court’s prior opinion provides no basis
for the conclusion that Underwood was the actual killer of
Miyoshi as a matter of law.
Rather, in Underwood, the Court of Appeal held, based
on a review of the undisputed evidence and the jury’s
verdicts, that Underwood was guilty of felony murder as a
matter of law. This conclusion was based on the undisputed
evidence that Underwood was present and shared in the
stolen money—meaning he was “an intentional perpetrator
of the robbery”—and the undisputed evidence that the
murder was committed in perpetration of that robbery.
(Underwood, supra, 181 Cal.App.3d at pp. 1236–1237.) The
court concluded that the jury’s faulty second degree murder
conviction “had to be . . . an attempt by the jury to show

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unwarranted leniency,” reducing a first degree felony
murder conviction to second degree murder. (Id. at p. 1237.)
The appellate court’s prior holding leaves no room for
speculation that Underwood was convicted as the actual
killer, rather than under a felony murder theory of liability.
The court held that it was Underwood’s second degree
murder conviction that was problematic, and not the jury’s
inability to reach consensus regarding whether he personally
used a firearm in the offenses. (Ibid.) The trial court’s
reliance on the jury’s second degree murder conviction to
conclude Underwood was the actual killer, and therefore not
eligible for relief under section 1170.95 as a matter of law,
was error.
To the extent the trial court’s ruling was based upon its
own evaluation of the evidence in determining whether
Underwood made a prima facie case that he comes within
the statute, that too was error. We have previously held
that a trial court errs if it finds that a petitioner does not fall
within the provisions of section 1170.95 based on its own
evaluation of the facts set forth in an appellate opinion.
(People v. Smith (2020) 49 Cal.App.5th 85, 95–96, review
granted Jul. 22, 2020, S262835.)
Because the record of conviction does not establish that
Underwood was the actual killer as a matter of law, and it
does not appear that he is otherwise ineligible for relief as a
matter of law, we reverse and remand the matter to the trial
court to conduct further proceedings in accordance with the
terms of section 1170.95.

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 DISPOSITION

The trial court’s order denying Underwood’s
resentencing petition is reversed. We remand for the trial
court to conduct further proceedings in accordance with the
terms of section 1170.95.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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