People v. Valdivia CA2/8

Filed 3/12/21 P. v. Valdivia CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B302201

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA225456)
v.

HECTOR ISMAEL VALDIVIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Reversed.

Jonathan E. Demson, 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, Idan Ivri and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.

_________________________
 In 2002, a jury found appellant Hector Ismael Valdivia
guilty of first degree murder with a true finding that a principal
discharged a firearm resulting in death. The jury hung on
allegations that appellant had personally discharged a firearm
resulting in death, personally discharged a firearm, and
personally used a firearm. The trial court later granted the
People’s motion to dismiss those allegations. Appellant was
sentenced to 25 years to life in prison.
In 2019, appellant filed a petition for resentencing under
newly enacted Penal Code section 1170.95.1 Section 1170.95
implements Senate Bill No. 1437 which, among other things,
eliminated the natural and probable consequences doctrine as a
theory of liability for murder. Section 1170.95 allows a court to
resentence a convicted murderer if the court ultimately finds he
or she was convicted under a natural and probable consequences
theory of liability and the People have failed to prove, beyond a
reasonable doubt, that petitioner is currently guilty of murder
notwithstanding elimination of that doctrine. Without issuing an
order to show cause or holding an evidentiary hearing, the trial
court denied Valdivia’s petition, finding that his murder
conviction did not rest upon the now discarded theory of liability.
The question presented is whether Valdivia made a prima
facie showing that he is “entitled to relief” under section 1170.95,
subdivision (c), and is therefore entitled to the issuance of an
order to show cause and a possible evidentiary hearing where the
People would have the burden of proving beyond a reasonable
doubt that Valdivia is ineligible for resentencing.

1 All undesignated statutory references are to the Penal
Code.

2
 We reverse the order denying the petition. We find
Valdivia made the necessary prima facie showing and, in denying
the petition, the trial court made a mistake of law and improperly
determined facts that were not “readily ascertainable” from the
record. The matter is remanded with directions to the trial court
to issue an order to show cause and to hold an evidentiary
hearing as set out in section 1170.95, subdivision (d).

STANDARD OF REVIEW
Our review of the trial court’s interpretation of Senate Bill
No. 1437 is independent. (People v. Verdugo (2020)
44 Cal.App.5th 320, 328, fn. 8, review granted Mar. 18, 2020,
S260493 (Verdugo).

FACTUAL AND PROCEDURAL BACKGROUND
We take these facts, as do the parties in their briefing, from
the appellate opinion affirming Valdivia’s murder conviction.
(People v. Valdivia (Feb. 20, 2004, B163501) [nonpub. opn.].)2 On
September 3, 2001, Geovani Monterroza was killed by a single
gunshot. Earlier in the day, he and his friend Oscar Romero had
been repeatedly followed and chased by men in a black car.
Eventually, Monterroza, Romero, and their friend Ulysses
Estrada threw rocks at the pursuing car. Monterroza’s rock
broke a window in the car. At a party that afternoon, Valdivia
showed his friends Jose Salas and Gabriel Alonso his shattered
car window. Valdivia was angry and told them Monterroza had
broken his window. Valdivia borrowed Alonso’s gun, which was

2 On May 27, 2020, we granted appellant’s request to take
judicial notice of the unpublished opinion. On August 26, 2020,
we granted the People’s same request.

3
fully loaded, and left the party with Salas and Jerry Luengas.
Salas knew they were looking for Monterroza. At some point,
Valdivia said he saw “him” and jumped out of the car. Salas saw
Valdivia aim. Salas heard a single shot, but he did not see
Monterroza. Valdivia returned to the car and the men returned
to the party. Alonso’s gun was missing one bullet when Valdivia
returned it to him. Later that evening, Valdivia told Alonso he
had shot Monterroza. The police recovered the gun Alonso had
lent Valdivia and matched it to a casing found not far from
Monterroza’s body.
Appellant went to trial on the sole charge of first degree
murder and allegations that a principal discharged a firearm
resulting in death and that he personally discharged a firearm
resulting in death, personally discharged a firearm, and
personally used a firearm. His defense at trial was that Jose
Salas, another of the individuals at the crime scene, committed
the murder and, Salas, along with Alonso, concocted a story
blaming the murder on him.
In arguing at trial that appellant should be convicted of
first degree murder, the People relied on three theories of
liability. (People v. Valdivia, supra, B163501 at pp. *2–3.) The
People argued: “In this case there’s two ways at least, if not
three ways, that the defendant can be convicted of murder in this
case. [¶] One is he is the direct perpetrator, which all of the
evidence points to, another is that he is an aider and abettor, he
went along with the others for the purposes of murdering but
somebody else actually did it, and, third, that’s called the natural
and probable consequences theory. Maybe they didn’t all go to
commit the murder. Maybe they went to beat him up or to
[scare] him with a gun, put the fear of God in him, or whatever

4
their mind was all about. They went to beat him up, assault him
or scare the living daylights out of him. [¶] Well, the natural
[and] probable consequences of that behavior is that somebody
might die if you do that silly, stupid thing. And even if you didn’t
go there intended to do the murder but you went intended to do
that, you’re guilty of murder if that happens.”
The People continued: “Now, again we talked briefly about
natural and probable consequences. And when you go to think
about Jose Salas, Gabriel Alonso and the defendant, you have to
ask yourself when you go looking for somebody that you claim
you only want to beat up or assault, and you take a gun with you,
what is the natural and probable consequence? Is it a natural
and probable consequence that a death may follow? [¶] Now, a
natural and probable consequence is a consequence that is within
the normal range of outcomes that might be reasonably expected
to occur. Especially when you take a gun. It’s not based on what
these guys, Jose Salas and Gabriel Alonso or the defendant
Hector Valdivia intended or expected. It’s based on what a
person of reasonable and ordinary prudence would expect.”
The first theory—that appellant was the actual shooter
who killed the victim—required the jury to find that appellant’s
actions were willful, deliberate, and premediated and that he
acted with malice aforethought in killing the victim. The second
theory—that appellant aided and abetted the actual shooter in
the commission of the crime—also required the jury to find that
appellant willfully acted with malice, premeditation, deliberation,
and an intent to kill. The third theory based on the natural and
probable consequences doctrine—that appellant intended to aid
and abet a different crime (assault), but instead a murder
resulted—did not require the jury to find that appellant acted

5
with malice or an intent to kill. It required that the jury find
only that appellant intended to aid and abet the actual shooter,
whomever he was, in committing an assault or battery and
Monterroza’s murder was a natural and probable consequence of
his participation in that other crime. (See Couzens, Accomplice
Liability for Murder (SB 1437) (Apr. 2019), at pp. 5–7 [elements
of murder, aider and abettor liability, natural and probable
consequences doctrine]; People v. Chiu (2014) 59 Cal.4th 155, 161
(Chiu), superseded by statute on another ground as stated in
People v. Gentile (2020) 10 Cal.5th 830 (Gentile).)
The trial court instructed the jury on all three theories:
appellant as the actual shooter; appellant as aiding and abetting
murder committed by the actual shooter; and appellant as aiding
and abetting the different crimes of assault or battery resulting
in the murder as a natural and probable consequence of those
crimes.
The jury convicted appellant of first degree murder, but we
do not know, of course, which theory the jury adopted as the basis
of liability for murder.

THE RESENTENCING PETITION
On February 28, 2019, appellant filed a petition for
resentencing, pursuant to section 1170.95. His petition was
apparently facially sufficient as the trial court appointed counsel
for appellant on May 2, 2019. Both parties filed several briefs.
The People took the position that the jury convicted appellant as
the actual shooter only and did not rely on the natural and
probable consequences doctrine. They argued the “factual
evidence adduced at the trial, and the Appellate Court’s
summary of the facts and explicit and conclusive opinion, all
establish that the Petitioner was the actual killer, and, therefore,

6
the defen[dant] has not established a sufficient prima facie
showing that would warrant a hearing or relief. The facts . . .
show that the Petitioner was the actual killer . . . and the petition
should be summarily denied.”
On October 9, 2019, the trial court denied the petition.
There is no written ruling. Orally the court recited the facts as
stated in our appellate opinion and then stated: “So with the
settled facts here, looking at that, clearly the inference was that
the defendant was the shooter as the People argued to the jury.
And the jury hung on the issue of the personal use of the firearm.
However, the jury finding here was willful, deliberate and
premeditated murder[,] and under an aiding and abetting theory,
to find him guilty of that, they would also to have found the
specific intent to kill. . . . [¶] . . . [¶] So the jury finding of first
degree murder is a finding by the jury that the defendant
harbored the express malice, and therefore, he is not entitled to
the relief under [sections] 1437 and 1170.95.” “[T]he court finds
that Mr. Valdivia has not met a prima facie showing here
justifying the issuance of the order to show cause. Based upon
what I have indicated earlier, the jury necessarily found that the
defendant harbored express malice in finding him guilty of first
degree murder. [¶] While the court instructed on the natural
and [probable] consequences theory, it’s clear to this court that
the jury did not find the defendant guilty under this theory. . . .
[Y]es, finding the personal use of the firearm true would mean
that he was the actual shooter as a finding by the jury, the court
feels that the finding of the first degree murder, the willful,
deliberate and premeditated, necessarily negates the findings of a
natural and foreseeable consequence.” The court later went on to
say, “Natural and probable consequence doesn’t apply to first

7
degree murder. The finding of first degree murder is a finding of
express malice.”

DISCUSSION
I. The Ultimate Theory of Prosecution for Murder Was
Under Either a Theory of Express Malice or the
Natural and Probable Consequences Doctrine.
A. Liability for Murder
Traditionally, a defendant is culpable of murder when
either the defendant or an accomplice proximately causes an
unlawful death and the defendant personally acts with malice
aforethought. First degree murder is committed with malice
aforethought, but with the additional elements of willfulness
premeditation and deliberation. (People v. Knoller (2007)
41 Cal.4th 139, 151.)
Malice may be express or implied. It is express when there
is manifested a deliberate intention unlawfully to take away the
life of a fellow creature. It is implied when no considerable
provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart. (§ 188.)
Express malice requires an intent to kill, but implied malice does
not. (People v. Soto (2018) 4 Cal.5th 968, 970.) Nonetheless,
before Senate Bill No. 1437 and Chiu, supra, 59 Cal.4th at p. 161,
a defendant could be convicted of first degree murder without
proof of express or implied malice by resort to the theory of felony
murder (which is not implicated here so we do not address it) or
the natural and probable consequences doctrine (which we
discuss next).

8
 The natural and probable consequences doctrine permitted
a conviction for murder even when there is no proof of express or
implied malice. (CALCRIM No. 402; see generally Chiu, supra,
59 Cal.4th at p. 161; id. at pp. 171–172 (conc. & dis. opn. of
Kennard, J.) [indirect liability of the aider and abettor under the
natural and probable consequences doctrine requires a five-step
process: the jury must find that the defendant (1) with
knowledge of a confederate’s unlawful purpose; (2) with the
intent of committing, encouraging, or facilitating the commission
of any target crimes; (3) aided, promoted, encouraged, or
instigated the commission of the target crimes; (4) the
defendant’s confederate committed an offense other than the
target crimes; and (5) the offense committed by the confederate
was a natural and probable consequence of the target crimes that
the defendant encouraged or facilitated].) The natural and
probable consequences doctrine imposed liability for criminal
harms the defendant naturally, probably, and foreseeably put in
motion. The doctrine is not a theory of malice; the means rea of
the aider and abettor with respect to the murder is irrelevant.
(Gentile, supra, 10 Cal.5th at p. 847; People v. Lee (2020)
49 Cal.App.5th 254, 261, review granted July 15, 2020, S262459
(Lee).)
The doctrine imposed liability on “a person who aids and
abets a confederate in the commission of a criminal act . . . not
only for that crime (the target crime), but also for any other
offense (nontarget crime)”—including murder—“committed by
the confederate as a ‘natural and probable consequence’ of the
crime originally aided and abetted.” (People v. Prettyman (1996)
14 Cal.4th 248, 254; Gentile, supra, 10 Cal.5th at. p. 843.)
“ ‘Because the nontarget offense [was] unintended, the mens rea

9
of the aider and abettor with respect to that offense [was]
irrelevant and culpability [was] imposed simply because the
person could have foreseen the commission of the nontarget
crime.’ ” (Chiu, supra, 59 Cal.4th at p. 164.)
In 2014, Chiu changed the landscape with respect to
applying the natural and probable consequences doctrine to prove
first degree murder. The Chiu court held that an aider and
abettor cannot be convicted of premeditated first degree murder
under the natural and probable consequences theory. (Chiu,
supra, 59 Cal.4th at p. 161.) However, when appellant was
convicted in 2002, the People were permitted to prove culpability
for first degree murder by using this doctrine. (Id. at
pp. 161, 166.)
B. Senate Bill No. 1437
In 2019, the amendments enacted by Senate Bill No. 1437
totally eliminated liability for all degrees of murder under the
natural and probable consequences doctrine. It did so by
amending section 188, which now 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.” (§ 188, subd. (a)(3).) After Senate Bill
No. 1437, a defendant cannot be convicted of murder absent proof
of malice, with an exception inapplicable here involving felony
murder. (§ 189, subd. (e); Lee, supra, 49 Cal.App.5th at p. 262,
review granted.) Senate Bill No. 1437 did not redefine the
element of malice; it merely eliminated the option of convicting a
defendant of murder without a showing of malice.

10
 More specifically the Legislature itself has stated that by
amending sections 188 (defining malice) and 189 (defining the
degree of murder), Senate Bill No. 1437 changed the “the natural
and probable consequences doctrine, as it relates to murder, to
ensure that 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.” (Stats. 2018, ch. 1015, § 1,
subd. (f).)
C. Section 1170.95
When the Legislature decided to abolish the natural and
probable consequences doctrine as a basis for liability for murder,
it provided a specific procedure by which to examine prior murder
convictions to determine if a defendant was convicted of murder
under that doctrine and whether he is now ineligible for relief.
(§ 1170.95.) The procedure is relatively straightforward. Section
1170.95 allows a felon convicted of murder under the natural and
probable consequences doctrine to “file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶]
(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) The 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 of first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January

11
1, 2019.” (§ 1170.95, subd. (a).) The petition must contain basic
identifying information and be filed with the court that sentenced
the petitioner. (Id., subd. (b)(1).)
Once the petition is filed, the trial court’s review begins.
First, section 1170.95, subdivision (b)(2) provides that the trial
court may deny the petition without prejudice if any of the
information required by subdivision (b)(1) is missing and cannot
be readily ascertained by the court.
After a petition has been filed that includes all required
information, the next step is set out in section 1170.95,
subdivision (c). “The court shall review the petition and
determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a
response within 60 days of service of the petition and the
petitioner may file and serve a reply within 30 days after the
prosecutor response is served. . . . If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court
shall issue an order to show cause.” (§ 1170.95, subd. (c), italics
added.) Thus, subdivision (c) compels the resentencing court to
make two prima facie determinations. The first is whether
petitioner has made a prima facie showing that he or she falls
within the provisions of the section. If that showing is made, the
trial court then appoints counsel and orders briefing. After
briefing, the trial court rules on the second prima facie showing
that petitioner must make, to wit, that he or she is entitled to
relief under the statute.

12
 If the second prima facie showing has been made, the court
issues an order to show cause and sets up an evidentiary hearing
where the burden is on the People to show beyond a reasonable
doubt that the petitioner is ineligible for resentencing. At that
evidentiary stage, the prosecutor and the petitioner “may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3).)
Thus, section 1170.95, subdivision (c) describes a
chronological sequence of actions, the order of which must be
respected. (People v. Nunez (2020) 57 Cal.App.5th 78, 87, review
granted Jan. 13, 2021, S265918 [sequential structure of a
statutory scheme supports interpretation that acts required by
statutes occur in the same sequence].) This sequence includes
two stages in which the court undertakes a prima facie review—
one review takes place before briefing and one after. Before
briefing, the court determines whether petitioner has made a
prima facie showing that he or she “ ‘falls within the provisions’ ”
of the statute. This initial review thus determines the facial
sufficiency of the petition. (Verdugo, supra, 44 Cal.App.5th at
pp. 327–328, review granted.) The court’s role at this stage is
simply to decide whether the petitioner is ineligible for relief as a
matter of law, making all factual inferences in favor of the
petitioner. (Id. at p. 329.)
If the petition is facially sufficient, the second review occurs
after appointment of counsel and submission of written briefs.
Here the court determines whether petitioner has made a prima
facie showing that he or she is entitled to relief. (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020,
S260598.) The second prima facie review is the subject of this
appeal as the trial court appointed counsel for appellant and

13
ordered briefing. At the second prima facie review, the trial court
does not evaluate the credibility of the petitioner’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 980
(Drayton).) The court’s authority to make determinations
without conducting an evidentiary hearing pursuant to section
1170.95, subdivision (d) is limited to “readily ascertainable” facts
from the record of conviction (such as the crime of conviction)
rather than factfinding involving the weighing of evidence or the
exercise of discretion (such as determining whether petitioner
showed reckless indifference to human life in the commission of
the crime). (Ibid.) The court need not credit factual assertions
that are untrue as a matter of law—for example, a petitioner’s
assertion that a particular conviction is eligible for relief where
section 1170.95 does not list the crime as eligible. Just as in
habeas corpus, if the record contains facts refuting the
allegations made in the petition, the court is justified in making a
determination adverse to the petitioner. Thus, at any stage prior
to the evidentiary hearing in subdivision (d), the information the
trial court may rely upon is limited to that which is readily
ascertainable from the record of conviction. To deny the petition
at this second stage, the court must find a petitioner “necessarily”
ineligible as a matter of law. (Ibid.)
Here the trial court denied the petition at the second stage
of review after finding that Valdivia had not made a prima facie
showing that he was entitled to relief. The trial court found that
the jury, in convicting appellant of first degree murder, had
“necessarily” found he had acted with express malice and
therefore did not rely on the natural and probable consequences
doctrine to establish culpability. The court concluded this finding

14
of express malice meant that appellant, as a matter of law, had
failed to make a prima facie showing that he was entitled to relief
under the statute. The trial court’s premise was erroneous as a
matter of law and so we reverse.

II. Appellant Made a Prima Facie Showing That He Was
Convicted of First Degree Murder Under the Natural
and Probable Consequences Doctrine.
Valdivia’s burden at the second subdivision (c) stage was to
make a prima facie showing that he was entitled to relief under
the statute. Prima facie evidence is that which suffices for the
proof of a particular fact, until contradicted and overcome by
other evidence. Prima facie evidence is not conclusive evidence; it
simply denotes that the evidence may suffice as proof of fact until
or unless contradicted and overcome by other evidence. (Estate of
Woodson (1939) 36 Cal.App.2d 77, 80.) “Normally . . . a ‘prima
facie showing’ connotes an evidentiary showing that is made
without regard to credibility. . . . [¶] This is particularly true
when [as here] the prima facie showing merely triggers an
evidentiary hearing, at which any necessary credibility
determinations can still be made.” (People v. Johnson (2015)
242 Cal.App.4th 1155, 1163.)
In determining whether a party has made a prima facie
showing, “ ‘the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable to
[the party] must be accepted as true and conflicting evidence
must be disregarded. The court must give “to the [party’s]
evidence all the value to which it is legally entitled, . . . indulging
every legitimate inference which may be drawn from the evidence
in [the party’s] favor . . . .” ’ ” (Stanley v. Richmond (1995)
35 Cal.App.4th 1070, 1086.) “Prima facie evidence . . . may be

15
slight evidence which creates a reasonable inference of fact
sought to be established but need not eliminate all contrary
inferences.” (Evans v. Paye (1995) 32 Cal.App.4th 265, 280–281,
fn. 13, and authorities therein cited; see Jenni Rivera
Enterprises, LLC v. Latin World Entertainment Holdings, Inc.
(2019) 36 Cal.App.5th 766, 781.) This is so even if there could be
other inferences as well. (Reaugh v. Cudahy Packing Co. (1922)
189 Cal. 335, 339.)
In denying the petition, the trial court found the jury made
a finding of express malice, because, at the time of his trial,
appellant could not be convicted of first degree murder under the
natural and probable consequences doctrine. This is not correct.
It was only after the 2014 holding in Chiu that defendants could
not be convicted of first degree murder under the natural and
probable consequences theory. (Chiu, supra, 59 Cal.4th at
p. 166.) Prior to 2014, the doctrine was available as a theory to
convict defendants of first degree murder. Thus, the jury could
have found appellant guilty under any of the three theories
proposed by the People at his trial. (The People do not dispute
that they argued natural and probable consequences as one of
their three theories of liability.)
Because it is impossible to know under which theory
appellant was convicted, we cannot say that “readily
ascertainable facts” make it certain as a matter of law that
appellant was necessarily convicted under a theory of express
malice. This is especially so because the jury hung on the
allegation that appellant personally discharged a firearm which
resulted in death. This means at least some of the jurors
concluded appellant was not the actual shooter and believed him
to be guilty as an aider and abettor with express malice or as an

16
aider and abettor under the natural and probable consequences
doctrine. Without a finding on the allegations it is not possible to
say “as a matter of law” that appellant was “necessarily”
convicted of being the shooter. The issue of whether he
personally discharged a firearm resulting in death was just not
decided. Thus, based on the jury’s inability to reach a verdict on
the personal use and discharge allegations, it is safe to infer that
the jury as a group necessarily did not conclude appellant was
the actual shooter. This suggests that the natural and probable
consequences theory was the most likely basis for the jury’s
verdict of first degree murder. At the very least, it constitutes a
prima face case for entitlement to relief.
Moreover, in finding that the jury necessarily made a
finding of express malice, rendering superfluous the natural and
probable consequences doctrine, the trial court engaged in
factfinding not appropriate at this stage of the proceedings.
(Drayton, supra, 47 Cal.App.5th at p. 980 [the court’s authority to
make determinations without conducting an evidentiary hearing
pursuant to section 1170.95, subd. (d) is limited to readily
ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime)].) Permitting the trial court to
pick and choose the parts of the trial testimony it believes and
disbelieves—factfinding—disables the low burden the Legislature
placed on petitioners who need to make only a prima facie
showing to obtain an order to show cause and evidentiary
hearing. After all, every defendant who petitions the court for
relief has admitted to murder by entering a plea or has been

17
convicted of murder at a trial where evidence was adduced in
support of the conviction. Each has had that conviction affirmed
on appeal in opinions that state the facts in the light most
favorable to the judgment. Foreclosing the possibility that
appellant made a prima facie showing by factfinding, that is,
crediting some evidence and discarding other evidence, deprives
the petitioner of the ease with which the Legislature wanted
these cases returned to court for evidentiary hearings where the
People would have to prove beyond a reasonable doubt that a
petitioner is ineligible for relief. Only by limiting the prima facie
review to consideration of facts that preclude eligibility as a
matter of law do we promote the Legislature’s intent that every
defendant convicted of murder at a trial where the natural and
probable consequences doctrine excused the People from proving
malice is given a new hearing where malice must now be proven
beyond a reasonable doubt. (People v. Rodriguez (2020)
58 Cal.App.5th 227, 243–244 (Rodriguez) [statutory language of
section 1170.95 indicates the court is to determine whether
petitioner would now be convicted of murder, not whether he was,
in fact, convicted of murder under a still-valid theory].)
Significantly, on appeal the People do not argue that the
trial court correctly construed the law or acted properly in finding
facts. Instead, the People rely on an argument raised for the first
time on appeal—that the trial court’s instruction to the jury
incorrectly stated the law on the issue of natural and probable
consequences. The People’s position, for the first time in
18 years, is that the instruction, instead of describing the target
crime as assault and battery (as was discussed in chambers
between court and counsel), misstated the target crime as the
murder itself.

18
 Our decision on direct appeal sets out the instruction and
indeed one sentence describes the target crime as murder.
However, neither court nor counsel then raised the issue; perhaps
no one caught it. Instead, appellant’s issue on appeal was that
the instructions on natural and probable consequences were
inappropriate because the target crime of assault was a
misdemeanor, not a felony. We held that the doctrine of natural
and probable consequences was applicable in this case,
notwithstanding that the target offense posited by the People was
a misdemeanor assault.
The People now argue appellant could not have been
convicted of murder under the natural and probable
consequences doctrine because it was incorrectly presented to the
jury. They argue because the instruction (CALJIC 3.02)
described the target crime as murder, it in effect was simply a
second instruction on direct aiding and abetting, so that the jury
“necessarily” found appellant guilty of direct aiding and abetting.
We disagree with the People’s premise. Inexplicably, this
issue is being raised for the first time on appeal and we conclude
it is forfeited. (Truck Insurance Exchange v. AMCO Ins. Co.
(2020) 56 Cal.App.5th 619, 635 [it is fundamental that a
reviewing court will ordinary not consider claims made for the
first time on appeal which could have been but were not
presented to the trial court].) However, if we were to review the
claim, we would find it without merit.
As a reviewing court, we review the instructions as a whole.
(People v. Lewis (2001) 25 Cal.4th 610, 649.) At the end of the
same instruction, the trial court correctly stated the target crime
as assault or battery: “[Y]ou must be satisfied beyond a
reasonable doubt that: [¶] . . . [¶] (4) the crime of murder was a

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natural and probable consequence of the commission of the
crimes of assault and/or battery.” The jury was also instructed:
“You are not required to unanimously agree as to which
originally contemplated crime the defendant aided and abetted,
as long as you are satisfied beyond a reasonable doubt and
unanimously agree that the defendant aided and abetted the
commission of an identified and defined target crime and that the
crime of murder was a natural and probable consequence of the
commission of that targeted crime. [¶] Whether a consequence is
‘natural and probable’ is an objective test based not on what the
defendant actually intended, but on what a person of reasonable
and ordinary prudence would have expected likely to occur. The
issue is to be decided in light of all of the circumstances
surrounding the incident. [¶] A ‘natural consequence,’ is one
which is within the normal range of outcomes that may be
reasonably expected to occur if nothing unusual has intervened.
[¶] ‘Probable’ means likely to happen.”
Critically, the People’s post-instruction closing argument,
as set out above, succinctly and correctly advised the jury it could
find appellant guilty of first degree murder under the natural
and probable consequences doctrine if his intention was simply to
“beat him up”, not kill, but the murder occurred anyway as a
natural consequence of the assault.
Even if this argument is not forfeited we conclude that one
misstated word situated among correct instructions bolstered by
the People’s clear explanation did not remove the doctrine of
natural and probable consequence from the jury’s purview. In
this regard we distinguish People v. Butler (2009) 46 Cal.4th 847,
870–871 where our Supreme Court considered similarly
transposed language misstating the charged crime as the target

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crime under a natural and probable consequences theory. There
the court briefly and quickly dispatched the prejudicial effect of
the erroneous instruction without considering the instructions as
a whole. Where, as here, there were other correct instructions
followed by correct argument by counsel, we conclude the
instruction does not lead to the conclusion that the jury found
express malice as a matter of law.

III. On Remand, the Trial Court Shall Determine at an
Evidentiary Hearing Whether the People Have
Proven Beyond a Reasonable Doubt That Appellant
Is Guilty of the Crime Charged Under Current Law.
Because we are sending this back to the trial court for an
evidentiary hearing, we remind the trial court that it is obliged to
make a finding whether the People have proven appellant guilty
beyond a reasonable doubt under current law. The issue is not
what the jury may or could have found at the original trial. The
parties may submit on the trial transcript and/or elect to offer
additional and new evidence on the issue of guilt. (See § 1170.95,
subd. (d).) But the ultimate issue for the court to decide is
whether, on the state of the evidence presented at the evidentiary
hearing, appellant has been proven guilty beyond a reasonable
doubt under the law as it presently stands. (Rodriguez, supra,
56 Cal.App.5th at pp. 243–244 [the court’s responsibility is to act
as independent fact finder and determine whether the evidence
establishes petitioner would be guilty of murder under amended
section 188 and 189 and is thus ineligible for resentencing under
section1170.95, subdivision (d)(3)].)

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 DISPOSITION
The order denying the petition is reversed. The petition is
remanded to the trial court with directions to issue an order to
show cause and set an evidentiary hearing in accordance with
section 1170.95, subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting, P. J.

WILEY, J.

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