Filed 3/4/21 P. v. Whitson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B305714
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. TA013892)
v.
DARRELL WHITSON,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed in part,
reversed and remanded in part.
Robert E. Boyce, 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,
Senior Assistant Attorney General, Idan Ivri and Michael
Katz, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
In the early 1990’s, defendant and appellant Darrell
Whitson was convicted of first degree murder, three counts
of willful, premeditated, and deliberate attempted murder,
and conspiracy to murder, in a drive-by shooting case.
Whitson petitioned for resentencing as to all five counts
pursuant to Senate Bill No. 1437 (Senate Bill 1437) and
Penal Code section 1170.95,1 which provide for vacatur of a
murder conviction obtained under 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.) He appeals the trial court’s postjudgment order
denying that petition.
Whitson contends that because the jury was instructed
that he could be found guilty on a natural and probable
consequences theory of liability in all five counts, and could
have found him guilty on that theory, the trial court erred in
finding he was prima facie ineligible for relief as matter of
law.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
We affirm in part, and reverse and remand in part.
Senate Bill 1437 does not apply to attempted murder and
conspiracy to murder convictions. We therefore affirm the
trial court’s order denying the petition with respect to the
convictions in counts 2, 3, 4, and 5. We must reverse and
remand with respect to the murder conviction in count 1. If
the jury had been properly instructed, its finding that
Whitson was guilty of conspiracy to murder would have
precluded relief under section 1170.95, but in this case the
trial court struck the portion of CALJIC No. 6.10 that would
have required the jury to find that Whitson intended to
commit murder before it could find him guilty of conspiracy
to murder.2 Absent a jury finding that Whitson intended to
kill, he is not ineligible as a matter of law for resentencing
with respect to the murder count.
2 The reporter’s transcript is not included in the record
on appeal, so we cannot ascertain why the trial court
modified CALJIC No. 610.
3
FACTS AND PROCEDURAL HISTORY3
The Crimes
On July 7, 1991, Whitson was driving a blue Jeep. 15-
year-old Vernon Cox, who testified for the prosecution at
trial under a grant of immunity, was in the passenger seat.4
Whitson met codefendant Shon Ramone Yokely. The two
were members of a Crips gang, a rival to the Bloods gang to
which one of the victims, Albert Jones, belonged. (Yokely,
supra, B074241, p. 3.) Whitson told Yokely he was going to
drive around looking for Bloods and invited him to come
along. Yokely agreed, but first ran into a nearby residence.
When he returned there was something in his waistband.
(Id. at p. 6.) Whitson drove into Bloods territory, and slowed
in front of a residence where Albert, his brother Paul, his
sister Katie, and Katie’s daughter Mitchshale were standing.
(Id. at pp. 3, 7.) Yokely, who was sitting in the back seat on
the driver’s side, opened fire on the family. He shot Albert in
the shoulder and ear, Katie in the leg, Paul in the leg, and
3 We take judicial notice of this court’s prior
unpublished opinion in People v. Yokely et al. (Jan. 17, 1995,
B074241) (Yokely), from which the facts are drawn. The
opinion spells codefendant’s name “Yokely” in the caption
but “Yokley” in the body of the opinion.
4 Cox was intoxicated and had been vomiting just
before the shooting.
4
14-month-old Mitchshale in the head, killing her. The Jeep
sped away. (Id. at p. 3.)
“Whitson was confirmed as the driver of the Jeep on
that day by several other witnesses. He was also linked to
the car by the presence of a .25-caliber bullet, which could
have been fired from the .25-caliber automatic which he
possessed on the date of his arrest. Whitson also admitted to
being the driver, although he attempted to exculpate himself
from the shootings.” (Yokely, supra, B074241, p. 4.)
The Trial
As relevant here, the jury was instructed regarding
direct liability as an aider and abettor (CALJIC No. 3.01),
aider and abettor liability for murder as natural and
probable consequence of assault with a firearm (CALJIC No.
3.02), conspiracy to murder and overt acts, as well as
liability for the natural and probable consequences of acts in
furtherance of conspiracy to murder (CALJIC Nos. 6.10 &
6.11), premeditation and deliberation (CALJIC No. 8.20),
and transferred intent (CALJIC 8.65).
The jury found Whitson guilty of first degree murder
(§ 187, subd. (a) [count 1]), three counts of willful,
premeditated, and deliberate attempted murder (§§ 664/187
[counts 2–4]), and conspiracy to commit murder (§ 182, subd.
(1) [count 5]). It further found that a principal used a
firearm in commission of the crimes in counts 1 through 4,
pursuant to section 12022, subdivision (a)(1). Whitson was
5
sentenced to 25 years to life in count 1, and three
consecutive life sentences with the possibility of parole in
counts 2, 3, and 4. The sentence in count 5 was stayed
pursuant to section 654.
Direct Appeal
On appeal before another panel of this court, Whitson
argued that there was insufficient evidence to support the
finding that he was either a co-conspirator or an aider and
abettor of the shooting (Yokely, supra, B074241, p. 4), that
certain weapon evidence was erroneously admitted, and that
the trial court erred in imposing firearm enhancements
under sections 12022.5 and 12022.55 (id. at p. 2). With
respect to Whitson’s contention that the evidence was
insufficient to support his convictions, the appellate court
concluded “[t]he evidence in this case was not only
substantial; it was overwhelming.” (Id. at p. 4.) The court
reduced Whitson’s presentence credit, but otherwise
affirmed the judgment. (Id. at p. 10.)
Petition for Resentencing
On March 26, 2019, Whitson filed a petition for
resentencing under section 1170.95. He utilized a
standardized form, and indicated that he was not the killer,
did not act with intent to kill, and was not a major
participant in the underlying felony who acted with reckless
6
indifference to human life. He did not check the box
indicating that he was convicted of second degree murder
under the natural and probable consequences doctrine.
Whitson requested that counsel be appointed to him.
The People filed a response on September 20, 2019,
contending that Senate Bill 1437 was unconstitutional, but
that, even if the court were to find the legislation
constitutional, Whitson was ineligible for relief because: (1)
in finding Whitson guilty of conspiracy to commit murder
the jury necessarily found that he harbored an intent to kill;
(2) in finding Whitson guilty of the three attempted murders
the jury necessarily found that he harbored an intent to kill;
and (3) the jury’s findings that Whitson intended to kill the
three attempted murder victims transferred to the murder
victim.
Whitson’s appointed counsel filed a reply pursuant to
section 1170.95 on February 20, 2020, arguing for vacatur of
his convictions for murder, attempted murder, and
conspiracy to murder. The reply argued that: (1) the
People’s constitutional arguments were “highly disfavored”
and without merit, (2) the People failed to present facts to
rebut the presumption that Whitson was eligible for relief,
(3) Senate Bill 1437 eliminated aider and abettor liability for
murder under the natural and probable consequences
doctrine, and (4) attempted murder requires independent
proof of an aider and abettor’s specific intent to kill, which
the jury did not find in this case.
7
On March 4, 2020, the trial court denied the petition
after reviewing the pleadings, a “dummy file” created by the
clerk’s office in chambers, and “numerous writs and motions
. . . unrelated to the issues” that codefendant Yokely had
filed. The court did not issue an order to show cause and
hold a hearing, and neither the parties nor counsel
appeared.
The court ruled that Whitson failed to establish a
prima facie basis for relief, and denied the petition as a
matter of law, stating:
“The case reflected a classic drive-by shooting that was
a particularly vogue activity for gangs at that time.
Petitioner was a very active gang member with the 118th
Street East Coast Crips. The Crips were a bitter rival of the
Blood Gangs. Petitioner was the driver of the vehicle and
stopped his car to tell Yokely, the shooter, that they were on
their way to roll around to see some Bloods. Yokely said he
wanted to come along. Yokely went to a house. Petitioner
waited for Yokely. And when he returned to the car, he,
Yokely, was holding something in his waistband. The clear
and reasonable inference from these circumstances is that
Yokely was carrying a gun, and they were going to drive
around hunting for Blood gang members to shoot. This was
more than mere involvement in the shooting.
“Petitioner was literally the driver of this expedition.
Petitioner came up with the idea. His driving pattern was
very deliberate. He went to the rival gang’s territory and
8
slowed down the vehicle so Yokely could shoot. Then he
drove off to flee the scene of the shooting.
“Furthermore respondent’s point is well taken that we
should respect the fact-finding of the jury. Petitioner was
also convicted of three counts of attempted murder, again
reflecting their finding that he had the specific intent to kill.
“In short, petitioner was clearly a major participant in
the killing and acted with reckless indifference to human
life.”
Whitson timely appealed.
DISCUSSION
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under a felony murder [or natural and probable
consequences] theory of liability could petition to have his
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
9
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); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327, review granted
Mar. 18, 2020[, S260493].) If it is clear from the record of
conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition.
(Verdugo, at p. 330.) If, however, a determination of
eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court
must appoint counsel and permit the filing of the
submissions contemplated by section 1170.95. (Verdugo, at
p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th [1128,]
1140, rev. granted [Mar. 18, 2020, S260598].)” (People v.
Smith (2020) 49 Cal.App.5th 85, 92 (Smith), review granted
July 22, 2020, S262835.)
Whitson contends that because the record establishes
that the jury was instructed on the natural and probable
consequences theory of liability for murder, the trial court’s
summary denial of his petition was error. He argues that
the court erred by engaging in fact-finding and relying on
Yokely’s filings, which the court stated were “unrelated to
the issues.” He asserts that the trial court was required to
issue an order to show cause, conduct a hearing, and allow
the parties to present evidence under section 1170.95,
subdivision (c).
10
Attempted Murder Convictions & Conspiracy to
Murder Conviction (Counts 2-4)
With respect to Whitson’s convictions for attempted
murder, Senate Bill 1437, including the petitioning
procedure codified in section 1170.95, authorizes relief only
for defendants convicted of murder, not attempted murder,
and that limitation does not contravene constitutional equal
protection guarantees. (People v. Love (2020) 55 Cal.App.5th
273, 279, review granted Dec. 16, 2020, S265445; People v.
Alaybue (2020) 51 Cal.App.5th 207, 222–225; People v.
Dennis (2020) 47 Cal.App.5th 838, 841, review granted July
29, 2020, S262184; People v. Munoz (2019) 39 Cal.App.5th
738, 753–769, review granted Nov. 26, 2019, S258234; People
v. Lopez (2019) 38 Cal.App.5th 1087, 1103–1112, review
granted Nov. 13, 2019, S258175.)
As with attempted murder, the Legislature expressed
no intention that section 1170.95’s provisions be applicable
to convictions for conspiracy to murder. We see no reason to
distinguish between attempted murder and conspiracy to
murder in this context, and Whitson offers none. We
conclude that Whitson is ineligible for vacatur of his
conviction for conspiracy to murder pursuant to section
1170.95.
11
Murder Conviction (Count 1)
With respect to Whitson’s murder conviction, the
People concede, and we agree, that the trial court was
prohibited from engaging in fact-finding and weighing facts
at the eligibility stage of proceedings. (Smith, supra, 49
Cal.App.5th at pp. 95–96.) Instead, the People argue that
Whitson’s petition fails as a matter of law based on jury
findings at his trial. Specifically, the People contend that
either Whitson’s conviction for conspiracy to murder, or his
three convictions for attempted murder coupled with the
instructions regarding transferred intent, establish that the
jury found he intended to kill Mitchshale, and could still be
convicted of murder after the amendments to sections 188
and 189.
The Conspiracy to Murder Conviction as a Means
of Establishing Intent to Murder
The People first argue that Whitson’s conspiracy to
murder conviction precludes eligibility for relief for his
murder conviction, because the jury was required to find
that Whitson possessed the intent to murder to find him
guilty of conspiracy to murder.
“[C]onspiracy is a specific intent crime requiring an
intent to agree or conspire, and a further intent to commit
the target crime, here murder, the object of the conspiracy.”
(People v. Swain (1996) 12 Cal.4th 593, 602.) In this case
12
however, the jury was not instructed that, in addition to
finding Whitson intended to agree to conspire to commit
murder, it must also find he intended to commit murder.5
5 As relevant here, a modified version of CALJIC No.
6.10 was given that deleted a phrase from the form
instruction that states, “and with the further specific intent
to commit that crime.” (CALJIC No. 6.10.) The instruction
given by the trial court is set forth below, with our insertion
of the marker “[***]” to show where the phrase deleted by
the trial court would typically be included in the form
instruction:
“A conspiracy is an agreement entered into between
two or more persons with the specific intent to agree to
commit the public offense of murder [***] followed by an
overt act committed in this state by one [or more] of the
parties for the purpose of accomplishing the object of the
agreement. Conspiracy is a crime.
“In order to find a defendant guilty of conspiracy, in
addition to proof of the unlawful agreement and specific
intent, there must be proof of the commission of at least one
of the overt acts alleged in the [information]. It is not
necessary to the guilt of any particular defendant that
defendant personally committed the overt act, if [he] was one
of the conspirators when such an act was committed.
“The term ‘overt act’ means any step taken or act
committed by one [or more] of the conspirators which goes
beyond mere planning or agreement to commit a public
offense and which step or act is done in furtherance of the
accomplishment of the object of the conspiracy.
“The be an ‘overt act’, the step taken or act committed
need not, in and of itself, constitute the crime or even an
attempt to commit the crime which is the ultimate object of
13
Had the jury been fully instructed with respect to
conspiracy to murder, including the portion of the form
instruction deleted, its guilty verdict would have
encompassed the finding that Whitson intended to kill. That
finding would have precluded relief for the murder
conviction, as Whitson could still be convicted under section
the conspiracy. Nor is it required that such a step or act, in
and of itself, be a criminal or an unlawful act.”
The trial court also instructed the jury under CALJIC
No. 6.11:
“Each member of a criminal conspiracy is liable for
each act and bound by each declaration of every other
member of the conspiracy if such act or such declaration is in
furtherance of the object of the conspiracy.
“The act of one conspirator pursuant to or in
furtherance of the common design of the conspiracy is the act
of all conspirators.
“A member of a conspiracy is not only guilty of the
particular crime that to [his] knowledge [his] confederates
agreed to and did commit, but is also liable for the natural
and probable consequences of any [crime] [act] of a co-
conspirator to further the object of the conspiracy, even
though such [crime] [act] was not intended as a part of the
agreed upon objective and even though [he] was not present
at the time of the commission of such [crime] [act].
“You must determine whether the defendant is guilty
as a member of a conspiracy to commit the originally agreed
upon crime or crimes, and, if so, whether the crime alleged
[in Count[s] one, two, three & four] was perpetuated by [a]
coconspirator[s] in furtherance of such conspiracy and was a
natural and probable consequence of the agreed upon
criminal objective of such conspiracy.”
14
188, following the amendments effected by Senate Bill 1437.
(See § 188, subd. (a)(3) [imposing liability for murder when
the defendant acts with malice aforethought].) However, for
reasons unknown to us, the trial court struck the language
in the pattern instruction for CALJIC No. 6.10 that would
have instructed the jury that it was required to find that
Whitson intended to commit murder.
Nor are we persuaded by the People’s argument that
the jury’s “true” finding against Whitson on overt act 5—
charging that “[o]n or about July 7, 1991, the defendants and
others shot and killed 14 month old Mitchshalae [sic]
Davis”—constitutes a jury finding that Whitson intended to
kill the victim. The jury was instructed that an overt act is
any step taken beyond mere agreement and planning toward
committing murder. Significantly, it was further instructed
that, “[t]o be an ‘overt act’, the step taken or act committed
need not, in and of itself, constitute the crime or even an
attempt to commit the crime which is the ultimate object of
the conspiracy.” Nothing in these instructions suggest the
jury’s true finding equates to a finding that Whitson
possessed the intent to murder.
Absent an express finding by the jury of intent to
commit murder, Whitson is not barred from relief on that
basis as a matter of law.6
6 We reject Whitson’s argument that Mitchshale, or
any other individual, had to be named as the individual who
the defendants intended to kill when they conspired. We
agree with the Ninth Circuit that, under California law,
15
Attempted Murder Convictions as a Means of
Establishing Intent to Murder
The People argue that the three attempted murder
convictions required the jury to find that Whitson harbored
the specific intent to kill Albert, Paul, and Katie, because the
instruction regarding liability for a crime as a natural and
probable consequence of assault with a firearm was
expressly limited to the murder count.7 The People reason
conspiracy to commit murder may be based on an agreement
to kill “a human being” who is not specifically identified.
(United States v. Wicker (9th Cir. 2005) 151 F.App’x 563,
565.)
7 The trial court instructed the jury under CALJIC No.
3.02: “One who aids and abets [another] in the commission
of a crime [or crimes] is not only guilty of [that crime] [those
crimes], but is also guilty of any other crime committed by a
principal which is a natural and probable consequence of the
crime[s] originally aided and abetted.
“[T]he defendant is guilty of the crime of murder, [as
charged in Count[s] 1,] if you are satisfied beyond a
reasonable doubt that:
“(1) The lesser related crime of assault with a firearm
was committed,
“(2) The defendant aided and abetted such crime[s],
“(3) A co-principal in such crime committed the lesser
related crime of assault with a firearm, and
“(4) The crime of murder was a natural and probable
consequence of the commission of the crime[s] of assault
with a firearm.”
16
that, because the jury was properly instructed regarding
transferred intent under CALJIC No. 8.65 that “[w]hen one
attempts to kill a certain person, but by mistake or
inadvertence kills a different person, the crime, if any, so
committed is the same as though the person originally
intended to be killed, had been killed,” the jury would have,
by necessity, found that the intent to kill the three other
victims had been transferred to Mitchshale, and could still
be found guilty under the amendments to sections 188 and
189.
The problem with the People’s argument again lies
with the faulty conspiracy to murder instruction, which
allowed the jury to find that Whitson was guilty of any crime
that was a “natural and probable consequence[] of any
[crime] [act] [other than murder] of a co-conspirator to
further the object of the conspiracy, even though that [crime]
[act] was not intended as a part of the agreed upon objective”
(CALJIC No. 6.11), without first finding that Whitson
intended to commit murder.
With respect to attempted murder, the trial court
instructed the jury pursuant to CALJIC No. 8.66 that it need
only find: “1. A direct but ineffectual act was done by one
person towards killing another human being; and [¶] 2. The
person committing such act harbored express malice
aforethought, namely, a specific intent to kill unlawfully
another human being.” The evidence presented at trial was
that Yokely was the shooter and Whitson was the driver, so
under the instructions, if Yokely, who committed the
17
shooting, also intended to kill, Whitson could be liable for
the attempted murders that were a natural and probable
consequence of the conspiracy, which also did not require
that Whitson possessed the intent to kill. If the jury found
Whitson guilty of attempted murder under this theory that
did not require finding Whitson intended to kill the
attempted murder victims, there was no intent to transfer to
the killing of Mitchshale. Because we cannot rule out the
possibility that Whitson was found guilty on this theory, he
is not ineligible as a matter of law on this basis, either.
In light of the instructions given and the jury’s
verdicts, at this stage in the proceedings we are forced to
accept the highly unlikely possibility that the jury, who
found that Whitson intended to agree to murder a Blood,
picked up a fellow Crips gang member, drove into Blood’s
territory, and slowed his vehicle in front of a residence where
a Blood gang member was standing with his family while his
compatriot in the back seat fired multiple shots, only
intended to aid and abet the shooter in an assault with a
firearm. Although such a scenario strains credulity, in
adherence to the procedures set forth in section 1170.95, we
reverse and remand to the trial court for further proceedings
as to the murder conviction in count 1.
18
DISPOSITION
The trial court’s order denying Whitson’s resentencing
petition is affirmed as to his convictions for attempted
murder in counts 2, 3, and 4, and his conviction for
conspiracy to murder in count 5. As to the murder
conviction in count 1, we reverse and remand to the trial
court for further proceedings.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
19