People v. Cernogg CA2/3

Filed 3/12/21 P. v. Cernogg CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE

THE PEOPLE, B303218

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA085192)
v.

JAMES RUSSELL CERNOGG, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Reversed and remanded
with directions.
Edward H. Schulman, 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, Charles S. Lee and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
 In March 2008, a jury convicted defendant and appellant
James Russell Cernogg, Jr., of the murder of Michael Pimental.
Cernogg’s accomplice was the actual killer. In 2019, Cernogg
petitioned for resentencing pursuant to Penal Code section
1170.95.1 After appointing counsel for Cernogg and considering
briefing by the parties, the court denied the petition, finding that
the evidence was sufficient to prove beyond a reasonable doubt
that Cernogg acted as a direct aider and abettor. Cernogg
appeals, contending the trial court employed the wrong standard
at the hearing, and he is entitled to a new jury trial in light of
Senate Bill 1437. We reject the latter contention. However,
because the record is not clear regarding whether the trial court
applied a substantial evidence standard or, acting as a finder of
fact, applied the beyond a reasonable doubt standard, we reverse
and remand for the court to conduct a new hearing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The murder and Cernogg’s conviction2
On May 11, 2006, 12-year old Camilo H. and 15-year old
Pimental were “tagging” in the area of Rosecrans and Poinsettia
Avenues in Compton. Camilo wrote his moniker, “Dust,” on a
wall.
Cernogg, who was an associate of the Elm Street Piru gang,
was riding his bicycle in the area and asked the youths why they
were writing on the wall. Camilo said, “ ‘My bad.’ ” Cernogg told

1
All further undesignated statutory references are to the
Penal Code.

2
We derive the factual and procedural background in part
from our prior opinions in this matter, of which we have taken
judicial notice at Cernogg’s request. (Evid. Code, §§ 451, 452,
459.)

2
the boys to come with him, and they complied. As they walked
down Rosecrans, Cernogg spoke with another person on the
phone and said, “ ‘I got them right [here.]’ ” The person on the
phone told him to hold the boys there. Cernogg said to Camilo,
“ ‘I’m going to kill you and your mom.’ ”
Meanwhile, Michael Morales, a friend of the boys,
approached and asked Pimental if he had seen his mother.
Pimental asked Morales to accompany them. Cernogg asked
Morales if he wanted “ ‘some problems, too’ ” and said “ ‘[y]ou
better go back.’ ” According to Morales’s trial testimony, Cernogg
pulled up his shirt to reveal a gun in his waistband.3 Cernogg
said, “ ‘I’m going to teach these little fools a lesson not to write in
my hood again.’ ”
Within a few minutes, defendant Jeffrey Martin, an Elm
Street Piru gang member, arrived at the scene. He held a gun,
covered with a rag. Without saying a word to anyone, Martin
pointed the gun at Pimental, who pleaded, “ ‘No, don’t shoot.’ ”
From a distance of no more than three feet away, Martin fired a
single shot into Pimental’s head, killing him. Cernogg ran away,
leaving his bicycle at the scene; Martin walked away in the same
direction.
Cernogg was charged with murder. At trial, the People
proceeded under two theories of guilt: that Cernogg directly aided
and abetted the murder, and that the murder was the natural
and probable consequence of the target crime, felony false
imprisonment. The jury was instructed on both theories.
(CALJIC No. 3.01; CALJIC No. 3.02.) It convicted Cernogg of

3
At trial, Morales did not identify Cernogg as the man on
the bicycle. Prior to trial, he did not tell detectives that the man
on the bicycle displayed a gun.

3
first degree murder (§ 187, subd. (a)) and additionally found gang
and firearm enhancements true. (§§ 186.22, subd. (b), 12022.53,
subds. (b), (c), (d), & (e)(1).) The trial court sentenced Cernogg to
25 years to life in prison for the murder, plus 25 years to life for
the firearm enhancement.
2. Prior appeals
In an opinion issued on December 9, 2009, this Division
affirmed Cernogg’s judgment. (People v. Cernogg (Dec. 9, 2009,
B210684) [nonpub. opn.] (Cernogg I).) Cernogg I rejected his
claims that the evidence was insufficient, the trial court
committed instructional and sentencing errors, and the sentence
amounted to cruel and unusual punishment. In particular,
Cernogg I concluded the evidence was sufficient to support both
theories advanced by the People, i.e., direct aiding and abetting
and the natural and probable consequences doctrine. After
describing the evidence supporting the conclusion that Cernogg
was a direct aider and abettor, Cernogg I held, “This evidence is
more than sufficient to show that Cernogg shared Martin’s intent
and purpose; hence, he is liable as a direct aider and abettor of
Pimental’s murder.” Turning to the sufficiency of the evidence to
support the conviction under the natural and probable
consequences doctrine, Cernogg I continued: “Alternatively, it is
also possible that Cernogg did not know that Martin intended to
execute Pimental. Perhaps, as Cernogg suggests in his opening
brief, he thought Martin would merely give the young boys a
‘stern warning.’ Even so, there is still evidence to support the
judgment under the natural and probable consequences
doctrine.”
In 2014, our Supreme Court concluded, in People v. Chiu
(2014) 59 Cal.4th 155 (Chiu), that an aider and abettor cannot be

4
guilty of first degree premeditated murder under the natural and
probable consequences doctrine. (Id. at pp. 158–159.) In April
2015, we granted Cernogg’s motion to recall the remittitur and
reinstate the appeal, based on Chiu. In an opinion issued on
September 3, 2015, we concluded that under Chiu, the trial court
had erred by instructing the jury on the natural and probable
consequences doctrine. (People v. Cernogg (Sept. 3, 2015,
B210684) [nonpub. opn.] (Cernogg II).)
We determined that the matter had to be remanded for
either a new trial, or to allow the People to accept a reduction of
the offense to second degree murder. We reasoned: “Where, as
here, a defendant possibly has been convicted of first degree
premeditated murder under the natural and probable
consequences doctrine, the conviction must be reversed unless
the reviewing court can conclude beyond a reasonable doubt that
the jury based its verdict on a legally valid theory. [Citations.] A
legally valid theory—direct aiding and abetting—was before the
jury. But, as the People concede, we cannot determine beyond a
reasonable doubt that the jury based its verdict on that theory, as
opposed to the invalid natural and probable consequences
doctrine. The People argued both theories to the jury and
nothing in the record suggests on which theory the jury relied.”
We further explained that the evidence was sufficient to
prove Cernogg acted as a direct aider and abettor: “As to direct
aiding and abetting, we previously found that there was
sufficient evidence to support that theory. To prove liability as a
direct aider and abettor, the prosecution must show that the
defendant ‘acted “with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing,
or of encouraging or facilitating commission of, the offense.’

5
[Citation.] The evidence here was that Martin was a known
member of the Elm Street Piru gang, and Cernogg was an
associate of the gang. On the night of Pimental’s murder,
Cernogg was riding his bike in gang territory. When he stopped
Pimental and Camilo, he told them to come with him. Cernogg
chirped Martin, who told Cernogg to ‘hold them’ there. Cernogg
followed Martin’s orders. Cernogg stated his intent to Camilo:
‘ “I'm going to kill you and your mom.” ’ [¶] That Cernogg
intended harm is further evidenced by his threat to Morales, a
friend of Pimental’s and Camilo’s who happened to wander by.
Cernogg told Morales that unless he too wanted ‘ “some
problems,” ’ he had ‘ “better go.” ’ Cernogg lifted his shirt to
reveal a gun and said something to the effect of, ‘ “I’m going to
teach these little fools a lesson not to write in my hood again.” ’
This evidence is more than sufficient to show that Cernogg
shared Martin’s intent and purpose and to therefore allow a
retrial under a direct aiding and abetting theory.”
On remand, the People elected not to retry Cernogg for first
degree murder. His conviction was reduced to second degree
murder, and the trial court resentenced him to 15 years to life for
the murder, plus 25 years to life for the firearm enhancement.
3. Cernogg’s section 1170.95 petition and appeal
In January 2019, after passage of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), Cernogg filed a
petition to vacate his second degree murder conviction. Using a
preprinted form, he checked boxes stating that he had been
convicted of murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine; he was not the
actual killer; and he could not now be convicted of murder in light

6
of changes to the law made by Senate Bill 1437. He also checked
a box requesting that counsel be appointed for him.
The trial court determined that Cernogg had established a
“prima facie case for resentencing” and appointed counsel for
him. Thereafter, the People filed a response opposing the
petition, Cernogg filed a reply, and the People filed another
response. The People argued that the record of conviction was
sufficient to prove Cernogg acted as a direct aider and abettor
with the intent to kill, and therefore he was not entitled to relief
under section 1170.95. Cernogg argued the trial evidence did not
show he had the intent to kill. Further, he argued the question
was not whether substantial evidence supported denial of the
petition. Instead, the court had to apply the “beyond a
reasonable doubt” standard.
On November 21, 2019, the trial court denied the petition.
It stated that it had taken into consideration “the court file” and
this court’s prior opinions in the case. It explained, “Based upon
that . . . I find to be the law of this case and I do find that
[section] 1170.95 is not applicable to Mr. Cernogg, specifically
1170.95(a)(3) in that the findings of the appellate court and my
findings with the appellate court decision is that their malice was
present in regards to an intent to kill on a direct aiding-and-
abetting theory beyond a reasonable doubt.”
Defense counsel argued at the hearing that the substantial
evidence test, applicable when an appellate court reviews the
sufficiency of the evidence, should not apply to evaluation of a
section 1170.95 petition. Instead, she argued, the court was
required to presume Cernogg was innocent and “weigh the
evidence again.” In counsel’s view, the evidence did not show
Cernogg was a direct aider and abettor.

7
 In response the trial court opined, “When the appellate
court makes the decision, some of these facts again are the law of
the case and the finding of fact and that’s one of the things I’m
going by, almost that I am bound by, not that there’s sufficient
evidence, but they are pointing out the fact of the finding and
that’s what I’m basing my decision on as well.”
Cernogg filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People
v. Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar.
18, 2020, S260493 (Verdugo); People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234 (Munoz).)
Prior to passage of Senate Bill 1437, under the natural and
probable consequences doctrine a defendant was “liable for
murder if he or she aided and abetted the commission of a
criminal act (a target offense), and a principal in the target
offense committed murder (a nontarget offense) that, even if
unintended, was a natural and probable consequence of the
target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
248; Munoz, supra, 39 Cal.App.5th at p. 749, rev.gr.) Senate Bill
1437 amended section 188 to state that malice may not be
imputed to a person based solely on his or her participation in a
crime. (§ 188, subd. (a)(3).) Thus, pursuant to Senate Bill 1437,

8
where the felony-murder rule is not at issue, a person must act
with malice to be convicted of murder. (Munoz, at p. 749.)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a felony-
murder or natural and probable consequences theory may
petition in the sentencing court for vacation of their convictions
and resentencing. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder by means of a charging document that
allowed the prosecution to proceed under a natural and probable
consequences or felony-murder theory; (2) he must have been
convicted of first or second degree murder; and (3) he could no
longer be convicted of first or second degree murder due to
changes to sections 188 and 189 wrought by Senate Bill 1437.
(§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897, review granted Aug.
12, 2020, S263219 (Tarkington); Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.; but see People v. Cooper (2020) 54
Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684
[1170.95, subd. (c) does not require two prima facie reviews].) If
the petitioner makes such a showing, the court must issue an
order to show cause (OSC) and conduct a hearing to determine
whether to vacate the murder conviction and resentence the

9
petitioner on any remaining counts. (§ 1170.95, subds. (c), (d);
People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165–1166
(Nguyen).)
At that hearing, the burden of proof is on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing. Both the People and the petitioner may rely on
the record of conviction, including an appellate opinion in the
case, and may also present new and additional evidence to
demonstrate the petitioner is, or is not, entitled to resentencing.
(§ 1170.95, subd. (d)(3); see People v. Clements (2021) 60
Cal.App.5th 597, 603, 612–613 (Clements); Tarkington, supra, 49
Cal.App.5th at pp. 899, fn. 5, 909, rev. gr.; Verdugo, supra, 44
Cal.App.5th at p. 333, rev. gr.) “If the prosecution fails to sustain
its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
(§ 1170.95, subd. (d)(3).)
2. Application here
Although the trial court here did not issue an OSC, the
parties treat its denial of the petition as a decision on the merits
following an evidentiary hearing under section 1170.95,
subdivision (d)(3). Cernogg does not contend the court’s failure to
issue an OSC was error or somehow prejudiced him. Accordingly,
we treat the court’s ruling as a denial of the petition under
subdivision (d)(3).
Cernogg contends that the trial court erroneously based its
denial of his petition on the substantial evidence standard: that
is, it improperly concluded he was not entitled to relief because
Cernogg II held there was sufficient evidence presented at his
trial to prove he was a direct aider and abettor. Instead, he

10
argues, his petition could be denied only if the People established,
beyond a reasonable doubt, that his jury actually based its
verdicts upon a still-valid theory, a showing they could not make
in light of this court’s earlier opinions. Further, he asserts that
unless his murder conviction is vacated, his case must be
remanded for a new jury trial.
The People appear to assert that, when ruling on a section
1170.95 petition at the subdivision (d)(3) hearing stage, a trial
court must act as a trier of fact and apply the reasonable doubt
standard. They contend that the trial court correctly applied this
standard here, despite its discussion of the law of the case
doctrine.
a. Principles of statutory interpretation
When construing a statute, our “primary task is to
determine and give effect to the legislature’s purpose in enacting
the law.” (In re H.W. (2019) 6 Cal.5th 1068, 1073.) “ ‘We start
with the statute’s words, which are the most reliable indicator of
legislative intent.’ [Citation.] ‘ “We interpret relevant terms in
light of their ordinary meaning, while also taking account of any
related provisions and the overall structure of the statutory
scheme to determine what interpretation best advances the
Legislature’s underlying purpose.” ’ [Citation.] ‘If we find the
statutory language ambiguous or subject to more than one
interpretation, we may look to extrinsic aids, including legislative
history or purpose to inform our views.’ [Citation.]” (In re A.N.
(2020) 9 Cal.5th 343, 351–352.) We harmonize the various parts
of an enactment by considering the particular clause or section in
the context of the statute as a whole. (People v. DeLeon (2017) 3
Cal.5th 640, 648; In re H.W., at p. 1073.) We review questions of

11
statutory interpretation de novo. (People v. Gonzalez (2017) 2
Cal.5th 1138, 1141.)
b. The “alternative-theory error” standard is
inapplicable to evaluation of a section 1170.95 petition
Cernogg argues that a trial court may deny a section
1170.95 petition only if it finds, beyond a reasonable doubt, that
the petitioner was actually convicted of murder under a still-
viable theory. On direct appeal, an “alternative-theory error”
standard applies when a trial court erroneously instructs on two
theories of guilt, one legally correct, one not. Where the record
suggests the jury could have based its verdict on the legally
invalid theory, and there is no other basis to determine the
instruction was harmless beyond a reasonable doubt, reversal is
required. (People v. Aledamat (2019) 8 Cal.5th 1, 13; Chiu, supra,
59 Cal.4th at p. 167 [when court instructs on a legally correct and
a legally erroneous theory, reversal is required “unless there is a
basis in the record to find that the verdict was based on a valid
ground”]; In re Martinez (2017) 3 Cal.5th 1216, 1218 [reversal
required unless record shows jury actually relied on a legally
valid theory].) The question is not whether it is clear beyond a
reasonable doubt that the defendant was found guilty under the
legally correct theory, “but whether we can say, beyond a
reasonable doubt, that the legally incorrect jury instruction did
not taint the actual jury verdict.” (People v. Baratang (2020) 56
Cal.App.5th 252, 263.)
Cernogg argues that under section 1170.95, “[p]roving
ineligibility beyond a reasonable doubt is simply another way of
saying that the instructional error in the first instance was
‘harmless beyond a reasonable doubt.’ ” Thus, he reasons,
because this court has already held that it was not possible to

12
determine, beyond a reasonable doubt, which theory the jury
relied upon, his petition should have been granted and his
conviction vacated.
We disagree. This is not a direct appeal, and the
alternative-theory error standard does not apply. As People v.
Rodriguez (2020) 58 Cal.App.5th 227 (Rodriguez) recently
explained, the alternative-theory error standard is inconsistent
with section 1170.95’s language in three respects. “First, the
[alternative-theory error] line of cases requires courts to inquire
whether ‘there is a basis in the record to find that the verdict was
based on a valid ground.’ [Citation.] That backward looking
evaluation is inconsistent with section 1170.95, subdivisions
(a)(3)’s and (d)(3)’s explicit direction to the court to determine if
the petitioner could now be convicted of murder under sections
188 and 189 as amended, not whether he or she was, in fact,
convicted of murder under a still-valid theory. Second,
subdivision (d)(3) permits both parties to present new or
additional evidence at the hearing after issuance of the order to
show cause. If the superior court’s ineligibility ruling may be
based on evidence not heard by the original trier of fact, the
Legislature cannot have intended the court simply to evaluate
the grounds on which the original verdict was reached. Finally,
section 1170.95 is available to defendants convicted of murder
following a plea in lieu of a trial. Given the limited record in
many of those cases, it would be impossible to assess whether a
still-valid ground for a murder conviction existed, let alone to
determine beyond a reasonable doubt that the valid ground was
the basis for the plea. Yet section 1170.95 contemplates the same
procedure to determine ineligibility in plea cases as in cases in

13
which the murder conviction was reached at trial.” (Rodriguez, at
pp. 239–240.)
Nor do we agree with Cernogg’s perfunctory contention that
application of the alternative-theory error standard is required in
order to preserve his right to a “reliable and unanimous jury
determination” of his guilt. The “retroactive relief [petitioners]
are afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’
Sixth Amendment rights” to a jury trial. (People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156; People v. Lopez (2019) 38
Cal.App.5th 1087, 1114–1115, review granted Nov. 13, 2019,
S258175; People v. Lopez (2020) 56 Cal.App.5th 936, 958, review
granted Feb. 10, 2021, S265974 [proceedings under section
1170.95 do not implicate the Sixth Amendment right to have
essential facts found by a jury beyond a reasonable doubt].)
“Section 1170.95 petitioners are not criminal defendants charged
anew with murder and constitutionally entitled to a jury trial.
Instead, they stand convicted of murder, their convictions are
final, and they can constitutionally be punished for murder
despite the ameliorative changes to the law of murder enacted by
Senate Bill No. 1437.” (People v. Lopez, 56 Cal.App.5th at p. 957.)
c. The independent fact finder standard applies to a
section 1170.95, subdivision (d)(3) hearing
We agree with Cernogg, however, insofar as he asserts that
the proper inquiry for a court ruling on a section 1170.95 petition
is not whether there is substantial evidence in the record to
support a murder verdict on a still-valid ground. Instead, at the
subdivision (d)(3) hearing stage, the court must act as an
independent trier of fact and determine—based upon the record

14
and/or additional evidence presented by the parties—whether,
beyond a reasonable doubt, the petitioner is guilty under a theory
that remains valid after Senate Bill 1437’s enactment.
Section 1170.95 is not a model of clarity. Subdivision (d)(3)
provides that the prosecution has the burden to prove, beyond a
reasonable doubt, that “the petitioner is ineligible for
resentencing.” Subdivision (d) does not define ineligibility.
Therefore, “ineligible for resentencing” necessarily refers back to
the three requirements for filing a section 1170.95 petition listed
in subdivision (a): a charging document must have been filed
against the petitioner allowing the prosecution to proceed under
a felony-murder or natural and probable consequences theory;
the petitioner was convicted of murder; and—most significantly
for our inquiry—the petitioner “could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019,” that is, by Senate Bill 1437. In
most cases, persons convicted of offenses other than murder, or
who are ineligible as a matter of law, will not reach the
subdivision (d)(3) hearing stage. The touchstone for the trial
court’s determination at the hearing, therefore, is whether the
petitioner “could not be convicted” of murder after the
amendments effectuated by Senate Bill 1437. The People’s task
is to prove the converse, that the petitioner could be convicted of
murder absent application of the felony-murder rule or the
natural and probable consequences doctrine. (See People v.
Lopez, supra, 56 Cal.App.5th at pp. 948–949, rev. gr.)
The appellate courts are currently divided on the question
of what this phrase means. People v. Duke (2020) 55 Cal.App.5th

15
113,4 concluded that the prosecution must prove, beyond a
reasonable doubt, that “the defendant could still have been
convicted of murder under the new law—in other words, that a
reasonable jury could find the defendant guilty of murder with
the requisite mental state for that degree of murder. This is
essentially identical to the standard of substantial evidence, in
which the reviewing court asks ‘whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt . . . .’ ” (Id. at p. 123; see also People v. Garcia
(2020) 57 Cal.App.5th 100, 106, review granted Feb. 10, 2021,
S265692.)
Other courts have rejected this construction of the statute,
concluding that a petition may not be denied based merely upon
the existence of sufficient evidence in the record to support a
murder conviction. Instead, the court hearing the petition must
act as an independent fact finder and determine whether the
evidence—in the record or newly presented at the hearing—
establishes beyond a reasonable doubt that the petitioner is
guilty of murder under amended sections 188 and 189. (See
People v. Duchine (2021) 60 Cal.App.5th 798, 812–815 (Duchine);
Clements, supra, 60 Cal.App.5th at pp. 603, 615–617 [trial judge
ruling on a section 1170.95 petition “sits as a fact finder” and
“reviews the record, hears the testimony, and decides as a factual
matter whether the petitioner committed murder under the
current law”]; Rodriguez, supra, 58 Cal.App.5th at pp. 243–244;
People v. Lopez, supra, 56 Cal.App.5th at p. 951, rev. gr. [trial
court must find, beyond a reasonable doubt, that prosecutor has
proved each element of murder under current law].) Our

4
Review was granted in Duke on January 13, 2021,
S265309.

16
Supreme Court is currently considering the issue. (People v.
Duke, S265309.)
Although we do not necessarily agree with all of the
analyses propounded by the latter group of authorities, we agree
with their conclusion that section 1170.95 requires that the trial
court, acting as trier of fact, must determine whether the
petitioner is guilty of murder based on a still-valid theory.
We acknowledge that some aspects of section 1170.95
suggest the Duke court’s conclusion is correct. After Senate Bill
1437, an accomplice who was not the actual killer may still be
guilty of murder if he or she was a direct aider and abettor, acted
with malice, or—if the felony-murder rule was at issue—was a
major participant who acted with reckless indifference to human
life. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1135,
review granted Mar. 18, 2020, S260598; Nguyen, supra, 53
Cal.App.5th at p. 1168; §§ 187, subd. (a); 188, subd. (a); 189,
subd. (e).) Section 1170.95, subdivision (d)(3) expressly provides
that at the hearing, either party may rely on the record of
conviction or present new evidence. Arguably, therefore, where
the People have already presented sufficient evidence at trial to
prove the defendant was a direct aider and abettor, acted with
malice, or was a major participant who acted with reckless
indifference to human life, such evidence necessarily proves he or
she could be convicted of murder despite Senate Bill 1437’s
amendments.
And, because the substantial evidence inquiry incorporates
the reasonable doubt standard, it can be argued that subdivision
(d)(3)’s reasonable doubt requirement is met. (See People v.
Morales (2020) 10 Cal.5th 76, 88 (Morales) [“ ‘When considering a
challenge to the sufficiency of the evidence to support a

17
conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt,’ ” italics added];
People v. Flinner (2020) 10 Cal.5th 686, 748.)
Nonetheless, two aspects of section 1170.95 convince us
that the statute should not be so construed: the express reference
to the reasonable doubt standard in subdivision (d)(3), and the
provision that the parties may present new evidence at the
hearing.
First, the Legislature’s explicit requirement that the
prosecution must prove a petitioner could be convicted under
current law “beyond a reasonable doubt” strongly suggests the
substantial evidence standard is inapplicable. If the Legislature
simply intended to impose the reasonable doubt requirement that
is already incorporated into the substantial evidence test, the
reference in subdivision (d)(3) is at best surplusage. But when
construing a statute, we must give meaning to each of its
provisions. (See B.B. v. County of Los Angeles (2020) 10 Cal.5th
1, 13 [courts should, if possible, “give meaning to every word of a
statute and avoid constructions that make any word
surplusage”]; People v. Franco (2018) 6 Cal.5th 433, 437–438;
Clements, supra, 60 Cal.App.5th at p. 615.) Construing the
statute to require the prosecution “to prove ‘beyond a reasonable
doubt’ that ‘substantial evidence’ exists,” “borders on
incomprehensible.” (Duchine, supra, 60 Cal.App.5th at p. 813–
815.) Under this approach, the court illogically would be required
to “employ these two widely divergent standards in a combined
(and backwards) fashion to determine . . . whether a jury

18
hypothetically could have found a defendant guilty under a
permissible theory had it addressed the issue.” (Id. at p. 816,
italics omitted.)
Moreover, there are crucial differences in the reasonable
doubt standard incorporated into the substantial evidence test as
applied on appeal, and the reasonable doubt standard employed
by a trier of fact. In the former, although the appellate court
must find the evidence sufficient to support the judgment beyond
a reasonable doubt, the record is viewed in the light most
favorable to the judgment. (People v. Harris (2013) 57 Cal.4th
804, 849; Morales, supra, 10 Cal.5th at p. 88.) A court examining
the record for substantial evidence presumes in support of the
judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence, and does not resolve
evidentiary conflicts or judge credibility. (People v. Veamatahau
(2020) 9 Cal.5th 16, 35–36; People v. Harris, at p. 849; Morales, at
p. 88; People v. Gomez (2018) 6 Cal.5th 243, 278.) Nor does the
court inquire whether the evidence might be reasonably
reconciled with the defendant’s innocence. (People v.
Veamatahau, at p. 36; People v. Gomez, at p. 278.) In contrast,
when a trier of fact applies the reasonable doubt standard, it
must do the opposite: it must weigh the evidence, judge
credibility, and impartially consider all the evidence and
determine whether it leaves the trier of fact with an abiding
conviction the charge is true. (See § 1096; Clements, supra, 60
Cal.App.5th at p. 615; CALCRIM No. 220.)
Given these differences, the explicit reference to the
reasonable doubt standard indicates the Legislature expected a
trier of fact to independently make the subdivision (d)(3) inquiry.
Construing that subdivision to require only a substantial

19
evidence test would effectively read the reasonable doubt
language out of the provision. (Clements, supra, 60 Cal.App.5th
at p. 615.) “It is unlikely the Legislature would have selected
that language if it had intended only an appellate-type review of
the sufficiency of the evidence of the petitioner’s guilt on a still-
viable theory, rather than requiring the prosecutor to actually
establish the petitioner’s guilt under the newly amended
statutes.” (Rodriguez, supra, 58 Cal.App.5th at p. 242.)
Second, the substantial evidence test does not align with
subdivision (d)(3)’s provision that the parties may present new
evidence at the hearing. Applying the substantial evidence test
“has the demerit of leaving completely obscure what the trial
judge would be asked to do in a case where there is a trial
transcript and new live testimony.” (Clements, supra, 60
Cal.App.5th at p. 617]; Rodriguez, supra, 58 Cal.App.5th at
p. 242 [“How is the superior court to evaluate that additional
evidence if not as an independent fact finder? It would be
pointless for the court’s role in this situation simply to be
deciding whether a jury could credit a new witness’s testimony
and thus could conclude the petitioner had acted with express
malice”].) Indeed, where, as here, the record already contains
substantial evidence to prove guilt under a valid theory, the
provision allowing admission of new evidence would be
meaningless. Since a court applying the substantial evidence test
examines only whether the evidence is sufficient—and may not
weigh credibility or resolve evidentiary conflicts—new evidence
could never overcome the conclusion that substantial evidence
already existed; that would be a foregone conclusion. We do not
think the Legislature would have enacted a provision that, at
least in some cases, could have no practical effect.

20
 Finally, application of the independent fact finder standard
better effectuates the Legislature’s intent. Due to its concerns
about the disparity between individual culpability and
punishment that existed under the natural and probable
consequences doctrine and the felony-murder rule, the
Legislature enacted Senate Bill 1437 to more equitably sentence
“both past and future offenders in relation to their own actions
and subjective menses reae.” (Rodriguez, supra, 58 Cal.App.5th
at p. 240.) Application of the substantial evidence standard does
less to fulfill these goals than does the independent fact finder
standard. (See id. at p. 238.) Because the substantial evidence
standard is highly deferential, its application risks denying relief
to petitioners in cases where the evidence was merely sufficient,
rather than persuasive—and in which a trier of fact, weighing
the evidence, resolving conflicts, and evaluating credibility—
might well come to a different conclusion. Moreover, the
questions at issue in the direct appeal may have been quite
different than those arising when the natural and probable
consequences theory and felony-murder rule are excised from the
picture. Thus, looking solely to a prior appellate opinion’s
holding that substantial evidence existed risks overlooking or
giving too little weight to evidence that was of lesser import when
the felony-murder rule and natural and probable consequences
theory were still viable. (See Clements, supra, 60 Cal.App.5th at
p. 613.)5

5
We do not suggest that reliance on a prior opinion is
improper. It is part of the record of conviction, and section
1170.95, subdivision (d)(3) expressly allows the parties and court,
at the hearing, to rely on the record of conviction. (See, e.g.,
Clements, supra, 60 Cal.App.5th at pp. 612–613; People v. Gomez

21
 In sum, “[i]n view of the ameliorative purposes of Senate
Bill 1437, the Legislature’s stated concerns about proportionality,
fairness and excessive punishment, and its adoption of a trial
court proceeding at which new evidence may be submitted and a
criminal trial burden of proof beyond a reasonable doubt is
applied,” (Duchine, supra, 60 Cal.App.5th at p. 813), application
of the substantial evidence standard is unwarranted.6
d. Because it is unclear whether the trial court
applied the correct standard, reversal and remand is required
The People argue the record shows the trial court
independently found, beyond a reasonable doubt, that Cernogg
acted with the intent to kill. In our view, the record is
ambiguous. The court stated it had considered the court file as
well as this court’s prior opinions, and it discussed the evidence
presented at trial. It also referenced the reasonable doubt
standard. But, the record also suggests the court felt bound by
the law of the case doctrine, and denied the petition because this
court had already held substantial evidence existed to support a
jury finding that Cernogg was guilty as an aider and abettor.
The trial court referenced its own findings, but only in
conjunction with the “findings of the appellate court.” When
Cernogg’s counsel asked the court to specify the basis for its
decision, it responded that “the findings by the appellate court
are such that there is more than sufficient evidence to find

(2020) 52 Cal.App.5th 1, 15–16, review granted Oct. 14, 2020,
S264033; Verdugo, supra, 44 Cal.App.5th at p. 333, rev. gr.;
People v. Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7, rev. gr.)

6
In light of our conclusion, we do not address Cernogg’s
perfunctory assertion that application of the substantial evidence
standard violates equal protection principles.

22
beyond a reasonable doubt the defendant guilty under the aiding-
and-abetting theory and that’s based on the appellate court’s
finding it appears that’s what the jury did.” When counsel
argued that the substantial evidence test did not apply, the court
again referenced the law of the case doctrine. Had the court been
acting as an independent fact finder, there would have been no
reason for it to discuss the law of the case doctrine. In light of
this ambiguity, we reverse the court’s order and remand to allow
the trial court to conduct a new hearing at which it should act as
the trier of fact, determine whether the prosecution has
established all elements of second degree murder on a still-viable
theory, and state its findings on the record. (See Rodriguez,
supra, 58 Cal.App.5th at p. 244.)
3. Cernogg is not entitled to a new jury trial
Finally, Cernogg asserts that “should this Court decline to
vacate and reduce the offense to false imprisonment, it should
order a new jury trial because it cannot be determined beyond a
reasonable doubt whether the jury relied upon a legally correct or
incorrect theory of murder when it found appellant guilty in
2008.” This contention rests on two faulty premises: first, that
Senate Bill 1437 applies retroactively; and second, that Cernogg
can appeal his conviction despite the fact his judgment is long
final.
Our Supreme Court has recently confirmed that Senate Bill
1437’s amendments do not apply retroactively on direct appeal,
and the sole avenue of relief is a section 1170.95 petition.
(Gentile, supra, 10 Cal.5th at p. 839.) The court there explained:
“the procedure set forth in section 1170.95 is the exclusive
mechanism for retroactive relief and thus the ameliorative
provisions of Senate Bill 1437 do not apply to nonfinal judgments

23
on direct appeal.” (Ibid.) This holding compels rejection of
Cernogg’s contention. Indeed, Cernogg’s conviction was final
when Senate Bill 1437 was enacted. If the bill’s ameliorative
provisions do not apply to nonfinal convictions, they certainly
cannot apply to a final conviction. (See In re Estrada (1965)
63 Cal.2d 740, 745.) Senate Bill 1437 does not entitle Cernogg to
a new trial.
DISPOSITION
The order is reversed. The matter is remanded for further
proceedings in accordance with the opinions expressed herein.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

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