Filed 12/15/21 P. v. Young CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B310237
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142441)
v.
DAN M. YOUNG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Dan M. Young appeals from the trial court’s order denying
his petition for resentencing under Penal Code section 1170.95.1
He contends the court erred in denying his petition without
appointing counsel and without holding a hearing under section
1170.95, subdivision (d)(1). The People concede the court erred in
not appointing counsel, but argue that the error was harmless
and that a hearing under subdivision (d)(1) was not required
because the record of conviction established Young was not
entitled to relief as a matter of law. We agree with the People
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Young of Murder and Attempted
Murder, and This Court Affirms
On October 26, 2014, in retaliation for a violent altercation
with members of a rival gang, Young and a fellow gang member,
Christopher Stone, carried out a pair of shootings that left one
person dead and several wounded. In September 2015, to
instigate a confrontation with a rival gang, Young walked up to
another young man at a street corner and shot him dead.
In 2018, in connection with the October 26, 2014 shootings,
a jury convicted Young on one count of first degree murder
(count 1) and five counts of attempted willful, deliberate, and
premeditated murder (counts 2 through 6). In connection with
the September 2015 shooting, the jury convicted Young on one
1 Statutory references are to the Penal Code.
2
count of first degree murder (count 7) and one count of possession
of a firearm by a felon (count 8). On the murder counts the jury
found true the special circumstance allegation that, within the
meaning of section 190.2, subdivision (a)(3), Young committed
more than one murder in the first or second degree. On both
murder counts the jury also found true an allegation under
section 190.2, subdivision (a)(22), that Young intentionally killed
the victim while Young was an active participant in a criminal
street gang and committed the murder to further the activities of
the gang. The court sentenced Young to two terms of life without
the possibility of parole, plus 250 years to life, plus five years.
We affirmed Young’s convictions and prison sentence. (People v.
Stone et al. (Mar. 2, 2020, B293532) [nonpub. opn.].)
B. Young Files a Petition Under Section 1170.95
In October 2020 Young filed a petition for resentencing
under section 1170.95, declaring that a complaint, information, or
indictment was filed against him that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine and that he was
convicted of first degree felony murder,2 for which he could not
now be convicted because of changes to section 189, effective
January 1, 2019. In particular, Young alleged he was not the
actual killer; he did not, with the intent to kill, aid or abet the
actual killer in the commission of murder in the first degree; he
was not a major participant in the felony or did not act with
reckless indifference to human life during the course of the crime
2 Contrary to Young’s assertion in his opening brief, he did
not allege in his petition he was convicted of murder under the
natural and probable consequences doctrine.
3
or felony; and the victim was not a peace officer in the
performance of his or her duties. Young also requested counsel.
The superior court, without appointing counsel, summarily
denied Young’s petition. The court ruled: “The petitioner was
convicted of 2 counts of first degree murder. The jurors were
never instructed on the theory of felony murder nor on the theory
of natural and probable consequence doctrine. [¶] In addition,
the jury not only found the petitioner guilty of 2 counts of first
degree murder but also found true[ ] the special circumstance
under [section 190.2, subdivision (a)(3)], multiple murder. (See
CALCRIM No. 721) In fact, by finding these allegations to be
true, the jury had to have found that petitioner was the actual
killer and if not the actual killer, acted with the intent to kill (see
CALCRIM 702). [¶] Therefore, due to the jury’s findings as
stated and pursuant to Penal Code section [189,
subdivision (e)(1)], the petitioner has not made a prima facie
showing and does not qualify for resentencing to Penal Code
section 1170.95.”
Young then filed a motion for reconsideration, asking the
trial court to “vacate its order denying the petition and issue an
order vacating the convictions and sentences imposed on counts 1
and 2.” He contended that the record demonstrated the jury was
given “instructions that concerned the natural [and] probable
consequence theory of guilt” and that “a finding of true on section
[190.2, subdivision (a)(3),] does not amount to a finding of major
participation or reckless indifference to human life, and thus does
not preclude the petitioner from 1170.95 relief.” Young’s motion
included, as exhibits, some of the jury instructions from his trial,
including those on aiding and abetting, conspiracy, and first and
4
second degree murder. The court denied the motion, and Young
timely appealed from the order denying his petition.
DISCUSSION
A. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) “eliminated natural and probable
consequences liability for murder as it applies to aiding and
abetting, and limited the scope of the felony-murder rule.”
(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); see §§ 188,
subd. (a)(3), 189, subd. (e); People v. Gentile (2020) 10 Cal.5th
830, 842 [Senate Bill 1437 was enacted “‘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.’”].) “Senate Bill 1437 also added section 1170.95 to
the Penal Code, which creates a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief.” (Lewis, at p. 957, fn. omitted; see
Gentile, at p. 859.)
“Section 1170.95 envisions three stages of review of a
petition for resentencing.” (People v. Wilson (2021)
69 Cal.App.5th 665, 675; see Lewis, supra, 11 Cal.5th at
pp. 959-960.) First, the petitioner “must file a petition in the
sentencing court averring that: ‘(1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine[;] [¶]
(2) The petitioner was convicted of first degree or second degree
5
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[;] [¶] [and] (3) 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.’” (Lewis, at
pp. 959-960; see § 1170.95, subd. (a)(1)-(3).)
Second, if a petition under section 1170.95 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)), the court, after appointing counsel,
must “assess whether the petitioner has made a ‘prima facie
showing’ for relief.” (Lewis, supra, 11 Cal.5th at pp. 960, 963; see
§ 1170.95, subd. (c); People v. Wilson, supra, 69 Cal.App.5th at
p. 675; People v. Barboza (2021) 68 Cal.App.5th 955, 962.) “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,
‘allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.’” (People v. Mancilla (2021)
67 Cal.App.5th 854, 863.) The prima facie inquiry, however, is
limited. The “‘“court takes petitioner’s factual allegations as true
and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved.”’” (Lewis, at p. 971; see Barboza, at
p. 962; People v. Duchine (2021) 60 Cal.App.5th 798, 813, 815;
People v. Drayton (2020) 47 Cal.App.5th 965, 980, disapproved on
another ground in Lewis, at p. 963.)
The court’s authority to resolve the petition at the prima
facie stage “is limited to readily ascertainable facts from the
6
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).”
(People v. Drayton, supra, 47 Cal.App.5th at p. 980; see Lewis,
supra, 11 Cal.5th at p. 972 [“at this preliminary juncture, a trial
court should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion’”]; People v. Clayton (2021)
66 Cal.App.5th 145, 153 [same]; People v. Harris (2021)
60 Cal.App.5th 939, 958 [same], review granted Apr. 28, 2021,
S267802.) “‘However, if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Lewis, at p. 971;
accord, People v. Jenkins (2021) 70 Cal.App.5th 924, 932; see
People v. Duchine, supra, 60 Cal.App.5th at p. 815 [“absent a
record of conviction that conclusively establishes that the
petitioner engaged in the requisite acts and had the requisite
intent, the trial court should not question his evidence”].)
Third, if “the trial court determines that a prima facie
showing for relief has been made, the trial court issues an order
to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the
sentence and resentence the petitioner on any remaining counts
in the same manner as if the petitioner had not . . . previously
been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’” (Lewis, supra, 11 Cal.5th at
p. 960; see § 1170.95, subd. (d)(1); People v. Wilson, supra,
69 Cal.App.5th at p. 675.) “At the hearing to determine whether
the petitioner is entitled to relief, the burden of proof shall be on
7
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3);
see Lewis, at p. 960.) The prosecutor and the petitioner may rely
on the record of conviction or offer new or additional evidence.
(§ 1170.95, subd. (d)(3); see Lewis, at p. 960.)3
B. The Superior Court Erred in Not Appointing Counsel
for Young, but the Error Was Harmless
Young argues the superior court erred in denying his
petition without appointing counsel and in finding he had not
made a prima case of eligibility for relief, including relief on his
convictions for attempted murder.4 The People concede, and we
3 In October 2021 the Legislature amended section 1170.95.
Among other changes, the amendments (1) apply section 1170.95
to convictions for voluntary manslaughter and attempted
murder; (2) state the requirement to appoint counsel, if
requested, in new subdivision (b)(3), rather than in
subdivision (c); (3) affirm that the standard of proof at the
hearing on the order to show cause is proof beyond a reasonable
doubt; and (4) clarify that “a finding there is substantial evidence
to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (See Stats.
2021, ch. 551, § 2 (Senate Bill No. 775).) Because the Legislature
did not pass these amendments as urgency legislation, they will
become effective on January 1, 2022. (See Cal. Const., art. IV,
§ 8, subd. (c).)
4 In his opening brief, Young contended the superior court
also erred by denying his petition based on the record of
conviction. In his reply brief, however, he concedes the court’s
reliance on the record of conviction was not error. (See Lewis,
supra, 11 Cal.5th at pp. 970-971.)
8
agree, the superior court erred in not appointing counsel. (See
Lewis, supra, 11 Cal.5th at p. 963 [“petitioners who file a
complying petition requesting counsel are to receive counsel upon
the filing of a compliant petition”].) The People argue, however,
that the error was harmless and that the court did not err in
finding Young failed to make a prima facie case for relief because
the record of conviction shows Young is not eligible for relief as a
matter of law. (See Lewis, at p. 974 [“a petitioner ‘whose petition
is denied before an order to show cause issues has the burden of
showing “it is reasonably probable that if [he or she] had been
afforded assistance of counsel his [or her] petition would not have
been summarily denied without an evidentiary hearing”’”].) The
People are correct.
Although in his petition Young alleged he was convicted of
murder under a no-longer-valid theory of felony murder, he
contends on appeal the superior court erred in finding he was not
eligible for relief under section 1170.95 because the trial court
instructed the jury on a no-longer-valid theory of murder (and
now attempted murder) under the natural and probable
consequences doctrine. Young points to two instructions: the first
on “first or second degree murder with malice aforethought”
(CALCRIM No. 520), the second on “liability for conspirators’
acts” (CALCRIM No. 417). Because neither instructed the jury
on a no-longer-valid theory of murder or attempted murder under
the natural and probable consequences doctrine, the court’s error
in not appointing counsel was harmless. (See People v. Daniel
(2020) 57 Cal.App.5th 666, 678 [error in not appointing counsel
for the petitioner was harmless where the jury instructions
showed he was convicted under a still-valid theory of murder],
review dism. Dec. 1, 2021, S266336.)
9
1. The Instruction on Murder Did Not Include a
No-longer-valid Theory Under the Natural and
Probable Consequences Doctrine
The trial court instructed the jury with CALCRIM No. 520
that Young was charged in counts 1 and 7 with murder and that
to prove Young guilty the People had to prove Young “committed
an act that caused the death of another person” and did so with
“malice aforethought.” The instruction explained that there were
two kinds of malice aforethought, express malice and implied
malice, and that the defendant acted with express malice if he
unlawfully intended to kill. The defendant acted with implied
malice, the instruction explained, “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.”
The instruction stated that, if the jurors decided Young
committed murder, it was murder of the second degree, unless
the People proved it was murder of the first degree, as defined in
a separate instruction.
Although he is vague about it, Young appears to suggest
the language in the second element of the implied malice
instruction was an instruction on a no-longer-valid theory under
the natural and probable consequences doctrine. It was not. “It
is true that the doctrine of implied malice has a ‘natural and
probable consequences’ element.” (People v. Roldan (2020)
10
56 Cal.App.5th 997, 1004, review granted Jan. 20, 2021, S266031;
see People v. Gonzalez (2012) 54 Cal.4th 643, 653 [“[m]alice is
implied when a person willfully does an act, the natural and
probable consequences of which are dangerous to human life, and
the person knowingly acts with conscious disregard for the
danger to life that the act poses”].) But Senate Bill 1437
“removed the natural and probable consequences doctrine as a
basis for a murder conviction only insofar as it applied to aider
and abettor liability. . . . [T]hat liability arose when ‘“‘a
reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.’”’
[Citation.] In contrast to this vicarious liability, under which the
mens rea of an aider and abettor towards the killing is irrelevant,
the doctrine of implied malice requires that the perpetrator
actually appreciate that death is the natural and probable
consequence of his or her actions, and further requires that the
perpetrator consciously disregard that danger. [Citations.]
Senate Bill 1437 did nothing to remove implied malice as a basis
for a second degree murder conviction.” (Roldan, at
pp. 1004-1005; see People v. Rivera (2021) 62 Cal.App.5th 217,
231-232 [“implied malice is based on ‘the “natural and probable
consequences” of a defendant’s own act,’” and although Senate
Bill 1437 “‘abolished the natural and probable consequences
doctrine’ as a theory of vicarious liability, ‘it maintained the
viability of murder convictions based on implied malice, and the
definition of implied malice remains unchanged’”], review
granted June 9, 2021, S268405; People v. Clements (2021)
60 Cal.App.5th 597, 618 [“Senate Bill No. 1437 amended section
188 to require the prosecution to prove that all principals to a
11
murder acted with malice aforethought. [Citation.] Though this
change abolished the natural and probable consequences
doctrine, it maintained the viability of murder convictions based
on implied malice, and the definition of implied malice remains
unchanged.”], review granted Apr. 28, 2021, S267624; People v.
Daniel, supra, 57 Cal.App.5th at p. 677, fn. 4 [in “defining
implied malice, CALCRIM No. 520 mentions the concept of the
‘natural and probable consequences’ of a defendant’s own act,”
whereas the “natural and probable consequences doctrine
abolished by Senate Bill No. 1437 . . . is a theory of vicarious
liability”]; People v. Garcia (2020) 57 Cal.App.5th 100, 117
[Senate Bill 1437 “did not repeal the law imposing criminal
liability for implied malice murder”], review granted Feb. 10,
2021, S265692.)
2. The Instructions on Conspiracy Did Not Include
a No-longer-valid Theory Under the Natural
and Probable Consequences Doctrine
The trial court instructed the jury with CALCRIM No. 416
that the People had presented evidence of a conspiracy and that a
member of a conspiracy is criminally responsible for the acts of
any other member of the conspiracy performed to help accomplish
the goal of the conspiracy. The trial court stated that, to prove a
defendant was a member of a conspiracy in this case, the People
had to prove, among other things, that “[t]he defendant intended
to agree and did agree with one or more other co-participants to
commit murder” and that, “[a]t the time of the agreement, the
defendant and one or more [of] the other alleged members of the
conspiracy intended that one or more of them would commit
murder.” The court explained that “[t]he People must prove that
12
the members of the alleged conspiracy had an agreement and
intent to commit murder” and that the jury “must decide as to
each defendant whether he or she was a member of the alleged
conspiracy.”
The court then instructed the jury with CALCRIM No. 417
that, in addition to having criminal responsibility for the crimes
he or she conspires to commit, a member of a conspiracy “is also
criminally responsible for any act of any member of the
conspiracy if that act is done to further the conspiracy and that
act is a natural and probable consequence of the common plan or
design of the conspiracy.” “To prove that a defendant is guilty of
the crimes charged in counts one through six,” the court
instructed the jury, “the People must prove that:
1. The defendant conspired to commit one of the
following crimes: murder;
2. A member of the conspiracy committed attempted
murder to further the conspiracy;
AND
3. Attempted murder was a natural and probable
consequence of the common plan or design of the crime that the
defendant conspired to commit.”
Young suggests the “natural and probable consequence”
language in CALCRIM No. 417 was an instruction on a no-
longer-valid theory of murder and attempted murder under the
natural and probable consequences doctrine. But the conspiracy
on which the trial court instructed the jury was a conspiracy to
commit murder (albeit a conspiracy to commit murder generally,
not a conspiracy to murder a particular person). To find Young
liable as a conspirator for the offenses charged in counts 1
through 6, therefore, the jury had to find he agreed and intended
13
to commit the target offense of murder. Attempted murder and a
conspiracy to commit murder share the requirement of an intent
to kill. (People v. Juarez (2016) 62 Cal.4th 1164, 1169-1170; see
id. at p. 1174 [“The element of attempted murder that is missing
from conspiracy to commit murder is a direct but ineffectual act
toward accomplishing the intended killing.”].)5 Which means the
instructions did not permit the jury to convict Young on the
murder and attempted murders charged in counts 1 through 6
under the natural and probable consequences doctrine because
that doctrine “applies to unintended, nontarget offenses.” (People
v. Medrano (2021) 68 Cal.App.5th 177, 185; see People v. Beck
and Cruz (2019) 8 Cal.5th 548, 645 [because the defendants
“were charged with conspiracy to murder, not conspiracy to
commit a lesser crime that resulted in murder,” there was “no
possibility they were found guilty of murder on a natural and
probable consequences theory”]; Medrano, at pp. 183-184 [“in
convicting [the defendant] of first degree murder, the jury did not
rely on the natural and probable consequences doctrine because it
found him guilty of conspiracy to commit first degree murder”].)
Put differently, the instructions here did not permit the
jury to find Young guilty of murder or attempted murder under a
conspiracy theory without finding he intended to kill. (See People
v. Swain (1996) 12 Cal.4th 593, 607 [“a conviction of conspiracy to
commit murder requires a finding of intent to kill”].) That
removes the theory of conspiracy liability presented to the jury on
counts 1 through 6 from those theories invalidated by Senate
5 There is no such thing as a conspiracy in which the target
offense is attempted murder. (See People v. Iniguez (2002)
96 Cal.App.4th 75, 79 [conspiracy to commit attempted murder is
a “legal falsehood”].)
14
Bill 1437. (See Lewis, supra, 11 Cal.5th at p. 959 [“the
Legislature passed Senate Bill 1437 ‘to amend the felony murder
rule and 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’” (italics
added)]; People v. Farfan (Nov. 19, 2021, B309786)
___ Cal.App.5th ___, ___ [2021 WL 5409896, p. 1] [a finding the
defendant acted with intent to kill establishes he is “ineligible for
section 1170.95 relief as a matter of law”].)6
DISPOSITION
The order denying Young’s section 1170.95 petition is
affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
6 That the conspiracy the trial court instructed on here was
one to commit murder, rather than a conspiracy to commit a
lesser offense that resulted in murder or attempted murder,
distinguishes this case from the case on which Young principally
relies, People v. Offley (2020) 48 Cal.App.5th 588. In that case,
the prosecution relied on a theory of conspiracy to commit assault
with a firearm. (See id. at p. 599.)
15