Filed 5/26/21 P. v. Riley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B298450
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA079324)
v.
SAID RILEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Caneel C. Fraser, 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, Michael R. Johnsen, Supervising
Deputy Attorney General, and Charles S. Lee, Deputy Attorney
General, for Plaintiff and Respondent.
In 2011, a jury convicted defendant and appellant Said
Riley (defendant) on two counts of murder (one first degree
murder and the other second degree) and two counts of robbery.
The jury found true a multiple murder special circumstance,
which resulted in a life without possibility of parole sentence on
the first degree murder conviction. After enactment of Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437),
defendant filed a petition for resentencing pursuant to Penal
Code section 1170.95.1 We consider whether the trial court
correctly concluded the jury did not rely on the felony murder
rule or the natural and probable consequences doctrine in
convicting defendant—and thus, that defendant was ineligible for
resentencing as a matter of law.
I. BACKGROUND
Defendant filed a motion in this court asking us to
judicially notice the appellate opinion resolving his (and his co-
defendant Eddie Betancourt’s) direct appeal: People v. Betancourt
et al. (Mar. 11, 2013, B237204) [nonpub. opn.] (Betancourt). We
grant the motion and rely on the prior opinion in describing the
facts of the murders and in certain aspects of our analysis that
follows our summary of the facts. (See generally People v. Lewis
(2020) 43 Cal.App.5th 1128, 1137-1139 & fn. 7, review granted
Mar. 18, 2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th
320, 335, review granted Mar. 18, 2020, S260493 (Verdugo).)
Early on the morning of April 24, 2008, officers from the
Los Angeles Police Department responded to a 911 call of shots
1
Undesignated statutory references that follow are to the
Penal Code.
2
fired in an alley. When the officers arrived at the scene, they
found the body of Lauri Gilbert (Gilbert) in the front passenger
seat of a two-door Acura Legend. She had been shot three times
in the head. Gilbert was pregnant at the time she was shot, and
the fetus died as a result of her death.
James Davis (Davis), who owned the Acura and who had
made the 911 call, told police that he had been part of a group
that had gone looking to buy drugs. In addition to Davis, the
group included defendant, Eddie Betancourt (Betancourt), and
victim Gilbert. Davis drove the group to an alley behind a
library, where Gilbert got out of the car and disappeared down
the alley. When she returned, the drugs she purchased were
weighed and found to be “short” (i.e., less than what the group
had paid to receive), a fact that appeared to make Betancourt and
defendant upset.
After trying but failing to find the seller of the drugs, Davis
drove back to Gilbert’s apartment and parked in the alley. Davis,
Betancourt, and defendant got out of the car. As Davis walked
toward the rear of the vehicle, Betancourt pulled out a gun and
pointed it at Gilbert. When Davis heard a gunshot, he ran away.
As he ran, Davis heard two additional gunshots. Other witnesses
also described hearing one shot followed by a pause and then two
or more shots.
At trial, Betancourt testified he fired a shot that did not hit
Gilbert and defendant then grabbed the gun and shot and killed
her. Defendant, in an interview with investigating officers (a
recording of which was played at trial), denied shooting Gilbert.
He also denied being in the same car as Davis, Betancourt, and
Gilbert, or being present when Gilbert was shot.
3
As relevant for our purposes, the trial court instructed the
jury on aiding and abetting principles,2 murder generally, and the
elements of first and second degree murder specifically. The jury
was not instructed on the natural and probable consequences
theory of aiding and abetting. Nor was the jury given then-
customary felony murder instructions; the court understood, as it
said in discussions with counsel, that “‘this isn’t a felony murder
case.’” The trial court did, however, give the jury an instruction
patterned on CALJIC No. 8.10 that generally defined murder.
The instruction as given erroneously included language that
could have been read, in isolation, to permit a finding of murder
liability based on commission of a felony, specifically, assault
with a firearm. Here is how Betancourt describes it: “CALJIC
No. 8.10, as given in this case, told the jury that ‘Every person
who unlawfully kills a human being or fetus with malice
aforethought or a felony inherently dangerous to human life is
guilty of the crime of murder in violation of Penal Code section
187.’ Under the typed words ‘to human life’ the phrase ‘assault
with a firearm’ is handwritten in. The instruction also states:
2
As recounted in Betancourt: “The jury was instructed that
a person aids and abets a crime if he knows of the unlawful
purpose of the perpetrator, has the intent or purpose of
committing or encouraging the commission of the crime and aids
or encourages the intended crime. The instructions further
stated that an aider and abettor’s guilt is determined by the acts
of the participant and that person’s ‘own mental state.’ The
instructions also told the jury that an aider and abettor might
have a more culpable or less culpable mental state than the
actual perpetrator and that the aider and abettor’s guilt could
therefore be greater or less than the actual perpetrator’s guilt.”
4
‘The killing was done with malice aforethought or ___ a felony
inherently dangerous to human life namely assault with a
firearm ___ is a felony inherently dangerous to human life.’”
This instruction generally defining murder, of course, was
not the only murder instruction the jury received. The jury was
also given an instruction describing the elements of first degree
murder, including the requirement of proof of express malice, as
well as an instruction defining malice itself. Neither of these
instructions made reference to an inherently dangerous felony
like the general instruction patterned on CALJIC No. 8.10 did.
Following the defense closing argument, the trial court
clarified for the jury the theories of murder that were at issue
and felony murder was not among them: “In this case there are
three degrees of murder or three theories of murder that are
being presented to you. [¶] One is first degree murder where you
have an intent to kill and there is premeditation and
deliberation. [¶] There are two types of second-degree or two
degrees of second degree murder. One where you have [an]
intent to kill with no premeditation and deliberation. [¶] And
the second that we are calling implied malice murder where an
act is done without intent to kill and the natural consequences of
which are dangerous to human life. [¶] Depending upon what
you find to be the facts, those three different types may apply to
count 1 [the alleged murder of Gilbert] with respect to either
defendant. But only the second-degree implied malice applies to
count 2 [the alleged fetal murder].”
The jury convicted defendant (and Betancourt) of first
degree murder on count one and second degree murder on count
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two.3 The jury found true the multiple murder special
circumstance allegation. The jury also found true allegations
that Betancourt (1) personally and intentionally discharged a
firearm causing great bodily injury or death, in connection with
the charge of murdering Gilbert and (2) personally and
intentionally discharged a firearm, in connection with the fetal
murder charge. The jury found personal use and discharge of a
firearm enhancements alleged against defendant to be not true—
indicating the jury believed Betancourt was the actual killer.
On appeal from the criminal judgment, this court
addressed instructional error claims that necessitated opining on
the theory of murder the jury relied on in convicting defendant.
We held defendant’s conviction for the first degree murder of
Gilbert and the associated multiple murder special circumstance
true finding appropriately rested on instructions that required
the jury to find defendant (and Betancourt) intended to kill her.
We further held the jury instructions, considered as a whole and
in light of the statement made by the trial court concerning the
theories of murder at issue, dispelled any reasonable possibility
that the jury “understood the isolated reference in CALJIC No.
8.10 referring to an inherently dangerous felony” to permit
conviction of defendant for either murder on a felony murder
theory. Specifically, as to the first degree murder conviction, this
court held it was “not reasonably likely” that the jury relied on
the felony murder rule without finding malice. As to the second
degree murder conviction, this court opined “the jury must have
found that [defendant and Betancourt] acted with implied
3
The jury also found defendant guilty on the robbery
charges, which were unrelated to the murders.
6
malice” in light of the facts (including firing a gun at Gilbert’s
head multiple times at close range).
Years later, defendant filed a section 1170.95 petition for
resentencing. He checked boxes on the form petition asserting he
was convicted of first or second degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine and he could not be convicted of first or second degree
murder because of changes made to section 188 or section 189 by
Senate Bill 1437. He also requested appointment of counsel.
The trial court denied the petition without first appointing
counsel for defendant. Expressly relying on our decision in
Betancourt, the court found defendant was not entitled to relief
as a matter of law because he “was convicted as a direct aider and
abettor . . . with his own intent to kill. He was not convicted
under a theory of felony-murder or a theory of natural and
probable consequences. [¶] . . . The appellate opinion affirming
[defendant’s] conviction . . . reflects that [defendant] was
convicted of murder on a theory of being a direct
perpetrator . . . .” In the alternative, the court also found
(incorrectly, but we need not get into it) that Senate Bill 1437
was unconstitutional.
II. DISCUSSION
If a trial jury is not instructed on murder liability pursuant
to the natural and probable consequences doctrine or the felony
murder rule, a section 1170.95 petitioner cannot, as a matter of
law, demonstrate he or she is eligible for section 1170.95 relief.
(People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted
Sept. 23, 2020, S263939; People v. Smith (2020) 49 Cal.App.5th
85, 92, fn. 5, review granted Jul. 22, 2020, S262835 [“if the jury
7
was not instructed on a natural and probable consequences or
felony-murder theory of liability, the petitioner could not
demonstrate eligibility as a matter of law because relief is
restricted to persons convicted under one of those two theories”]
(Smith).) Though determining whether the jury was so
instructed here requires some elaboration, the record establishes
neither of defendant’s murder convictions rest on either of these
two theories of murder liability. The trial court was therefore
entitled to deny his section 1170.95 petition without first
appointing counsel.4 (Verdugo, supra, 44 Cal.App.5th at 330, rev.
gr.; Smith, supra, at 92 [“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”], rev. gr.)
Taking natural and probable consequences murder first,
the analysis is easy. As our opinion in Betancourt notes, the jury
was not instructed on natural and probable consequences
4
Defendant has no constitutional right to appointed counsel.
(See, e.g., People v. Falcon (2020) 57 Cal.App.5th 272, 279, review
granted Jan. 27, 2021, S266041; People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410;
Smith, supra, 49 Cal.App.5th at 92, rev. gr.; see also Dillon v.
United States (2010) 560 U.S. 817, 828-829 [holding Sixth
Amendment inapplicable to sentence modification proceedings];
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“[T]he
retroactive relief . . . afforded by Senate Bill 1437 is not subject to
Sixth Amendment analysis”]; In re Clark (1993) 5 Cal.4th 750,
780 [constitutional due process guarantees demand appointment
of counsel in postconviction proceedings “if a petition attacking
the validity of a judgment states a prima facie case leading to
issuance of an order to show cause”], italics added.)
8
murder. Defendant does not contend otherwise. That removes
one of the two potential bases for section 1170.95 relief.
The issue of felony murder is slightly more complicated but
the result is the same. The trial court recognized “‘this isn’t a
felony murder case’” and defendant’s jury accordingly did not
receive felony murder instructions. The twist, of course, is the
jury was given the incorrect version of the CALJIC No. 8.10-
patterned general murder instruction that referred to a felony
inherently dangerous to human life and specified assault with a
firearm. But that doesn’t matter. The instructions considered as
a whole and the jury’s multiple murder special circumstance true
finding leave no doubt the jury found defendant intended to kill
Gilbert—and his first degree murder conviction properly rests on
a finding of express malice, a ground for murder liability that
remains valid after Senate Bill 1437. That means defendant is
not entitled to resentencing on his first degree murder conviction.
(Verdugo, supra, 44 Cal.App.5th at 330 [“The record of conviction
might also include other information that establishes the
petitioner is ineligible for relief as a matter of law because he or
she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189 . . .”], rev. gr.) Defendant is also ineligible for
resentencing as a matter of law on his second degree murder
conviction because, as Betancourt holds (and we independently
agree), the evidence and instructions at trial establish the jury’s
determination of guilt rests on a finding of implied malice, which
again is a ground for murder liability that remains valid after
Senate Bill 1437.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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