People v. Russell CA2/7

Filed 7/19/21 P. v. Russell CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B305287

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA395919)
v.

RAYMOND JOHN RUSSELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard S. Kemalyan Judge. Affirmed.
The Appellate Law Firm and Berangere Allen-Blaine for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda Lopez and Scott A. Taryle,
Deputy Attorneys General, for Plaintiff and Respondent.
 Raymond Russell, convicted in 2014 of first degree,
premeditated murder and two counts of attempted willful,
deliberate and premediated murder, appeals the superior court’s
order denying his petition for resentencing under Penal Code
section 1170.95.1 Because the record of conviction indisputably
established Russell was convicted as a direct aider and abettor of
murder, acting with express malice (an unlawful intent to kill), a
theory of accomplice liability for murder that remains valid after
enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437), Russell is ineligible for
resentencing under section 1170.95 as matter of law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Russell’s Commitment Offense
Russell was charged in an information filed on February 1,
2012 with one count of murder (§ 187) and two counts of
attempted willful, deliberate and premeditated murder (§§ 664,
187) with special allegations as to all three counts that the crimes
had been committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)) and Russell had personally and
intentionally discharged a firearm causing great bodily injury or
death or a principal in the offenses had done so (§ 12022.53,
subds. (b), (c), (d), (e)(1)). Our opinion affirming Russell’s
convictions described the evidence presented at trial. (People v.
Russell (Feb. 14, 2017, B258669) [nonpub. opn.].)
In the early morning of October 16, 2011 Kevin Peary,
Jonathan Rambo and Keshawn Corbin were standing outside an
apartment building in a neighborhood claimed by the Crips
criminal street gang. An SUV stopped in the middle of the street,

1 Statutory references are to this code.

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and three men got out. All were wearing hooded sweatshirts
with the hoods up; each of the men was holding a gun. One of the
men shouted “Blood” and issued a gang challenge, “Where are
you from?” Peary responded, “I don’t bang.” “Fuck Naps,” a
pejorative term for a member of the Rollin 60’s Crips gang, was
yelled in response. The three men from the SUV then began
shooting, returned to their vehicle and drove away.
Corbin died from multiple gunshot wounds. Rambo was
shot twice in the right leg and survived. Peary escaped
uninjured. Although Peary testified at trial and described the
events leading to Corbin’s death, he did not identify Russell as
one of the three armed men involved in the shooting.
Police investigating the shooting found Russell’s cell phone
at the crime scene. Based on Peary’s description of the SUV (a
green Chevy Tahoe), it was determined a similar vehicle was
owned by Russell’s mother. Russell had been issued three traffic
citations while driving his mother’s SUV in the months prior to
the shooting. After his arrest, Russell made statements to a
confidential informant placed in his cell that appeared to
implicate Russell in the shooting. A recording of the conversation
between Russell and the informant was played for the jury.
2. The Jury Instructions
With respect to the charge of murder, the trial court
instructed the jury with CALCRIM No. 520: “To prove that the
defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant committed an act that caused the death of
another person; AND [¶] 2. When the defendant acted, he had a
state of mind called malice aforethought; AND [¶] 3. He killed
without lawful excuse or justification. [¶] There are two kinds of
malice aforethought, express malice and implied malice. Proof of

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either is sufficient to establish the state of mind required for
murder. [¶] The defendant acted with express malice if he
unlawfully intended to kill. [¶] The defendant acted with implied
malice if: [¶] 1. He intentionally committed an act; [¶] 2. The
natural and probable consequences of the act were dangerous to
human life; [¶] 3. At the time he acted, he knew his act was
dangerous to human life; AND [¶] 4. [¶] He deliberately acted
with conscious disregard for human life. [¶] . . . [¶] An act causes
death if the death is the direct, natural and probable consequence
of the act and the death would not have happened without the
act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual
intervenes. In deciding whether a consequence is natural and
probable, consider all the circumstances established by the
evidence.”
As to first degree murder, the court instructed in
accordance with CALCRIM No. 521: “The defendant is guilty of
first degree murder if the People have proved that he acted
willfully, deliberately and with premeditation. The defendant
acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and
against his choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if he decided to kill
before completing the act[s] that caused death.”
The court also instructed on direct aiding and abetting an
intended crime using CALCRIM Nos. 400 and 401. As given,
CALCRIM No. 401 explained, to prove Russell was guilty of
Corbin’s murder based on aiding and abetting that crime, the
People had to prove a perpetrator committed the crime; Russell
knew the perpetrator intended to commit the crime; Russell

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intended to aid and abet the perpetrator in committing the crime;
and Russell’s words or conduct in fact aided and abetted the
perpetrator’s commission of the crime. The instruction
continued, “Someone aid[s] and abets a crime if he or she knows
of the perpetrator’s unlawful purpose and he or she specially
intends to, and does in fact aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.” The jury
was not instructed on felony murder (CALCRIM Nos. 540A and
540B); nor was it instructed with CALCRIM Nos. 402, 403 or any
other instruction on the natural and probable consequences
doctrine as it relates to aiding and abetting.
3. Verdict, Sentence and Appeal
The jury convicted Russell of first degree murder and both
counts of attempted willful, deliberate and premeditated murder
and found true the special allegations the offenses had been
committed for the benefit of a criminal street gang. As to the
murder count and one of the two attempted murder counts, the
jury found true the allegations a principal had discharged a
firearm causing death or great bodily injury. As to the second
attempted murder count, the jury found true that a principal had
discharged a firearm. The trial court sentenced Russell to an
aggregate indeterminate state prison sentence of 105 years to life
plus a determinate term of 20 years.
We affirmed Russell’s convictions on appeal, rejecting his
contentions the trial court had erred in denying his Batson-
Wheeler motions and admitting a gang expert’s opinion testimony
based on hearsay and the prosecutor had engaged in misconduct
during closing argument. We struck as unauthorized the 10-year
gang enhancements imposed and stayed on each count pursuant
to section 186.22, subdivision (b)(1)(C), and the minimum parole

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eligibility of 15 years imposed pursuant to section 186.22,
subdivision (b)(5).
4. Russell’s Section 1170.95 Petition
On February 25, 2019 Russell, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Russell checked several boxes on the printed form
petition purporting to establish his eligibility for resentencing
relief, including the box stating at trial he had been convicted of
murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine and could not now be convicted of
first or second degree murder because of changes made to
sections 188 and 189 by Senate Bill 1437. He also checked
additional boxes applicable only to a petitioner who had been
convicted of felony murder.
The District Attorney filed two memoranda in opposition to
the petition on April 10, 2019, one contending Senate Bill 1437
and section 1170.95 were unconstitutional and the second
arguing Russell was ineligible for resentencing relief because his
conviction was based on the theory he was a direct aider and
abettor of the murder who had acted with an express intent to
kill, not the felony-murder rule (noting there was no underlying
serious felony enumerated in section 189, subdivision (a)), or the
natural and probable consequences doctrine (explaining there
was no target offense). Among other exhibits, the second
memorandum attached a copy of this court’s opinion affirming
Russell’s convictions.
The court appointed counsel to represent Russell on
April 29, 2019 (the same counsel who had represented Russell at
trial) and gave Russell 30 days to reply to the District Attorney’s

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opposition papers. The District Attorney filed a supplemental
response in opposition on November 19, 2019, which attached the
jury instructions given at Russell’s trial. The prosecutor noted
the jury had not been instructed on the felony-murder rule or the
natural and probable consequences doctrine.
Russell, through his counsel, filed a document entitled
“motion for resentencing” on December 4, 2019, which included a
memorandum arguing Russell was eligible for resentencing
because he had been convicted of first degree murder under the
natural and probable consequences doctrine. The memorandum
emphasized the language in CALCRIM No. 520 explaining, “[a]n
act causes death if the death is the direct, natural, and probable
consequence of the act and death would not have happened
without the act.”
Following argument from counsel at a hearing on
February 4, 2020, the court (Judge Richard S. Kemalyan) denied
the motion, finding Russell had failed to make a prima facie
showing he was entitled to relief. Judge Kemalyan, after
reminding counsel he had presided at the trial and was familiar
with the facts, explained his ruling: “Mr. Russell was convicted
of first degree murder, not on a felony-murder theory, not on a
natural and probable consequences theory. There was no target
offense. It was a murder that was alleged. There was no natural
and probable consequences jury instruct that was given. The
instruction given in this matter, 520, was for purposes of the
determination as to whether this was express or implied malice.
And of course, the defendant having been convicted of first degree
murder, the issue of malice becomes fairly obvious. Even
assuming that there’s some merit to Mr. Russell’s argument, I

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don’t think there’s any question that he was a major participant
in the killing and acted with reckless indifference to human life.”
Russell filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowed the felony-murder exception
to the malice requirement for murder. (See, e.g., People v.
Rodriguez (2020) 58 Cal.App.5th 227, 236, review granted
Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th
1077, 1080.) It also authorized, through new section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts: “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

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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 . . . and the petitioner may file and
serve a reply . . . . 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.”
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction and “can dismiss any petition filed by an individual
who was not actually convicted of first or second degree murder.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo),
review granted Mar. 18, 2020, S260493.) “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.” (Ibid.)
As this portion of our decision in Verdugo emphasized, for
relief to be denied without the court first issuing an order to show
cause and conducting an evidentiary hearing, the record of
conviction must establish the petitioner’s ineligibility as a matter
of law. (Verdugo, supra, 44 Cal.App.5th at p. 330, review
granted; see People v. Smith (2020) 49 Cal.App.5th 85, 92, review
granted July 22, 2020, S262835 [“[i]f 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”]; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,

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2020, S260410 [record must show defendant is “indisputably
ineligible for relief”].)
If the section 1170.95, subdivision (c), prima facie
showings have been made, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing
the prosecution has the burden of proving beyond a reasonable
doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3); Rodriguez, supra, 58 Cal.App.5th at
p. 230, review granted; People v. Lopez (2020) 56 Cal.App.5th
936, 949, review granted Feb. 10, 2021, S265974; but see People
v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13,
2021, S265309.) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. Russell Was Not Convicted of Murder Under the Felony-
murder Rule or the Natural and Probable Consequences
Doctrine and Is Not Eligible for Resentencing Relief
Noting the jury did not find he was Corbin’s actual killer
and focusing on the reference to the natural and probable
consequences of an act in CALCRIM No. 520’s definition of
implied malice, Russell argues he was convicted under the now-
invalid natural and probable consequences doctrine of accomplice
liability for murder, not as a direct aider and abettor of Corbin’s
murder. Accordingly, he contends, the superior court erred in

10
ruling he had failed to establish a prima facie case of eligibility
for resentencing relief. Russell’s record of conviction belies that
contention.
As the Supreme Court explained in Gentile, supra,
10 Cal.5th at pages 843 to 844, “Our law recognizes two forms of
liability for aiders and abettors. [Citation.] First under direct
aiding and abetting principles, an accomplice is guilty of an
offense perpetrated by another if the accomplice aids the
commission of that offense with ‘knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ [Citation.] [¶] Second, under
the natural and probable consequences doctrine, an accomplice is
guilty not only of the offense he or she directedly aided or abetted
(i.e. the target offense), but also of any other offense committed
by the direct perpetrator that was the ‘natural and probable
consequence’ of the crime the accomplice aided and abetted (i.e.,
the nontarget offense). . . . [¶] Unlike direct aiding and abetting
liability, culpability under the natural and probable consequences
theory does not require an accomplice to share the direct
perpetrator’s intent.”
Russell’s jury, instructed only with the elements of
accomplice culpability based on direct aiding and abetting, found
Russell guilty of first degree murder. That verdict necessarily
meant the jury found Corbin’s shooter had acted with express
malice and Russell, even if he was not the shooter, shared that
intent while assisting the shooter in committing the murder. As
such, he was ineligible for resentencing under section 1170.95 as
a matter of law. (See Verdugo, supra, 44 Cal.App.5th at p. 336,
review granted [affirming summary denial of section 1170.95
petition; “our review of the record confirmed that Verdugo’s

11
conviction for first degree murder was based on a jury finding he
had aided and abetted Barraza in the commission of that offense
and had acted with express malice in doing so”].)
Because the jury found Russell had acted with express
malice when aiding in Corbin’s murder, Russell’s argument
regarding the natural and probable consequences language in the
implied malice instruction is immaterial to a determination of his
eligibility for resentencing relief. It is also fundamentally
unsound, as the court of appeal held in People v. Soto (2020)
51 Cal.App.5th 1043, review granted August 17, 2020, S263939.
Directly addressing the language issue Russell raises, the
Soto court explained: “Although the instructions related to
implied malice and the natural and probable consequences
doctrine of aiding and abetting include similar language
regarding a ‘natural consequence,’ they are distinctly different
concepts. Implied malice is a mental state for the commission of
the crime of second degree murder either by the principal or as
an aider and abettor (as was the case here for Soto) to
murder. . . . [¶] The California Supreme Court has made clear
that a ‘direct’ aider and abettor must—at a minimum—share in
the mens rea of the actual perpetrator, whereas an ‘indirect’ aider
and abettor (i.e., one whose liability is premised on the natural
and probable consequences doctrine) need only intend to aid a
different, less serious ‘target’ crime, than the consequent crime.”
(People v. Soto, supra, 51 Cal.App.5th at pp. 1056-1057, review
granted.) The Soto court continued, “For implied malice murder,
[the required] intent is that the perpetrator ‘“knows that his
conduct endangers the life of another and . . . acts with conscious
disregard for life.”’ [Citation.] The ‘physical component’ required
for implied malice murder ‘is satisfied by the performance of “an

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act, the natural consequences of which are dangerous to life.”’
[Citation.] [¶] . . . Unlike aiding and abetting implied malice
murder, which requires the aider and abettor to (at least) share
the mental state of the actual perpetrator of implied malice
murder, ‘“aider and abettor culpability under the natural and
probable consequences doctrine is not premised upon the
intention of the aider and abettor to commit the nontarget offense
[e.g., murder] because the nontarget offense was not intended at
all.”’” (Id. at p. 1058.) This distinction between the mental state
required for direct aiding abetting liability and culpability under
the natural and probable consequences doctrine is critical, the
Soto court concluded, because relief under section 1170.95 is
available only to those convicted of murder by operation of the
natural and probable consequences doctrine or the felony-murder
rule. “Senate Bill No. 1437 changed the circumstances under
which a person could be convicted of murder without a showing of
malice, but it did not exclude from liability persons convicted of
murder for acting with implied malice.” (Soto, at p. 1057.)
Soto’s analysis is persuasive, and we decline Russell’s
invitation to disagree with it. As in Soto, the jury here
necessarily found Russell guilty of murder based on his own
actions and mental state as a direct aider and abettor of murder,
not based on a theory of vicarious liability or imputed malice, the
subject of Senate Bill 1437.

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 DISPOSITION
The postjudgment order denying the petition for
resentencing is affirmed.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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