People v. George CA2/4

Filed 1/6/22 P. v. George CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B309785

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA277679)
v.

TRAVIS EUGENE GEORGE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions
James Koester, 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, Assistant
Attorney General, Idan Ivri and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
 In 2004, appellant Travis George and an unidentified
compatriot shot and killed David Anthony Lyles. At appellant’s
2006 trial, the prosecution argued appellant was guilty of first
degree murder under three theories of liability: direct
perpetrator, direct aider and abettor, and the natural and
probable consequences doctrine. The jury found appellant guilty
of first degree murder and found true firearm and gang
enhancements. Appellant’s murder conviction subsequently was
reduced to second degree pursuant to People v. Chiu (2014) 59
Cal.4th 155 (Chiu).
In 2019, appellant sought resentencing pursuant to Penal
Code section 1170.95.1 The superior court denied appellant’s
petition after issuing an order to show cause and holding an
evidentiary hearing (see § 1170.95, subd. (d)). It found “beyond a
reasonable doubt that [appellant] is ineligible for relief pursuant
to section 1170.95” because he “could still have been convicted of
first degree murder under the amended law (§ 1170.95, subd.
(a)(3)), either as a major participant acting with reckless
indifference to human life or as a direct aider and abettor acting
with the intent to kill.”
Appellant now contends the court’s ruling was erroneous.
He argues, and respondent Attorney General agrees, that the
court applied an incorrect standard of proof at the hearing. We
agree. The prosecution must prove a petitioner is ineligible for
section 1170.95 relief beyond a reasonable doubt, and recent
amendments to section 1170.95, subdivision (d)(3) make explicit
that “[a] finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a

1All further section references are to the Penal Code unless
otherwise indicated.

2
reasonable doubt, that the petitioner is ineligible for
resentencing.” Respondent contends, however, that the error is
harmless. We reject this contention. While an error in
application of the standard of proof may indeed be harmless, we
conclude that it is not here. We accordingly reverse and remand
for a new hearing, at which the superior court shall apply the
correct standard of proof and shall not use the “alternative theory
instructional error analysis,” which we conclude is inapplicable.
FACTUAL BACKGROUND
After the hearing, the superior court made factual findings
based largely on those recited in our prior appellate opinion,
People v. George (Mar. 20, 2007, B190858) [nonpub. opn.]. The
parties did not present additional evidence at the hearing, and
the factual underpinnings of the incident are not disputed.
On December 18, 2004, Marasho Mazique attended a
birthday party at his neighbor Michael Hammond’s house, on
West 62nd Street in Los Angeles. At around 8:30 p.m., Mazique
was back at his home when he heard eight gunshots ring out
from the street in quick succession. Mazique ran outside and saw
Lyles, another party attendee, in the street. Lyles screamed,
“Marasho, I’m hit.” Mazique followed Lyles’s gaze down 62nd
Street toward Menlo Avenue and saw two men running away;
one was wearing a white t-shirt, and the other was wearing a red
t-shirt. Lyles said, “Those are the motherfuckers who shot me,”
and fired a gun at the two men. The men got into a car and fled
the scene. Lyles later died from a gunshot wound to his neck, one
of four gunshot wounds he received.
Michael Hammond was outside his house at the end of his
child’s birthday party when he heard 10 to 11 gunshots from a
few feet away. Hammond heard Lyles scream that he was shot

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and saw him stumble into the middle of the street. Hammond
saw two men running toward Menlo Avenue. One of them was
wearing a white t-shirt.
Approximately ten minutes later, around 8:40 p.m.,
Tameka Lawrence heard “moaning and groaning” outside her
West 81st Street home. She and her cousin Gregory Smith went
outside and found appellant, a friend of Smith’s, shirtless and
bleeding from a gunshot wound to his chest. Smith took off his
own shirt and tied it around appellant’s wound, while Lawrence
called 911.
Los Angeles Police Department (LAPD) officer James
Carroll responded to Lawrence’s call. Appellant told Carroll a car
with an unknown occupant pulled up and fired three shots at
him. When Carroll asked appellant where the shooting occurred,
appellant pointed in different directions. Appellant also offered
conflicting stories about where he had been going, including to
his grandmother’s and to a friend’s, and said he did not know the
friend’s name or address. Carroll and other officers investigated
the locations in which appellant claimed to have been shot and
found no evidence of a shooting. People in the neighborhood said
they had not heard or seen anything, and police did not find
appellant’s shirt.
Meanwhile, other LAPD officers investigated the scene of
the Lyles shooting on West 62nd Street. They found blood stains
on the sidewalk a few houses down from Hammond’s house, as
well as five bullet casings. Subsequent ballistics analysis
determined that four of the five bullet casings were fired from the
same gun, and none of the five was fired from Lyles’s gun.
LAPD detective Frank Alvelais interviewed appellant at
the hospital. Appellant told Alvelais he had been walking home

4
from Smith’s house when an unknown person shot at him from a
car. At the time of the shooting, appellant was wearing a plain
white t-shirt; he did not know what happened to the t-shirt.
Appellant admitted he was a member of the 8-Tre Hoover street
gang.
Alvelais subsequently went to Lawrence’s house, where he
found a trash bag hanging from a fence. The bag contained three
shirts: a white shirt with the words “Crabs” and “Slobs” on it,
with a hole in the upper left portion; a muscle shirt; and a black
shirt. Smith identified the black shirt as the one he had used to
stanch appellant’s bleeding. DNA testing revealed that the blood
on the black shirt matched one of the blood stains near the Lyles
shooting, which in turn matched a saliva sample appellant
provided.
LAPD detective Robert Quiroz testified as a gang expert at
appellant’s trial. He knew from past contacts and appellant’s
tattoos that appellant was an active member of the 8-Tre Hoover
gang, whose territory included 81st Street where Lawrence’s
house was located. The area around 62nd Street where Lyles
was shot belonged to the Brims, an offshoot of the Bloods and
rival of the 8-Tre Hoovers. The 8-Tre Hoovers did not associate
with either the Crips or the Bloods; they used the derogatory
terms “Crabs” for Crips and “Slobs” for the Bloods. Younger
members of the 8-Tre Hoovers were called “rascals,” and Quiroz
testified that they were the ones who committed shootings for the
gang. Appellant had a tattoo typical of a rascal tattoo.
PROCEDURAL HISTORY
I. Trial and Direct Appeal
Appellant was charged with the murder of Lyles. The
information also alleged that appellant or a principal personally

5
and intentionally discharged a firearm, causing great bodily
injury or death (§ 12022.53, subds. (d) & (e)(1)), and that
appellant committed the murder for the benefit of, at the
direction of, and in association with a criminal street gang, with
the specific intent to promote, further, and assist in criminal
conduct by gang members. (§ 186.22, subd. (b)(1)(A)). During
appellant’s jury trial, the prosecution dismissed the personal use
allegation. It nevertheless argued that appellant was the direct
perpetrator. In the alternative, the prosecution argued that
appellant was a direct aider and abettor, or was guilty under the
natural and probable consequences doctrine.
The jury found appellant guilty of first degree murder and
found the remaining firearm and gang allegations true. The
court sentenced appellant to 25 years to life for the murder, plus
25 years to life for the firearm enhancement.
We affirmed appellant’s conviction and sentence on direct
appeal. (People v. George (Mar. 20, 2007, B190858) [nonpub.
opn.].) The Supreme Court denied appellant’s petition for review.
II. Habeas Petitions
Appellant subsequently filed several petitions for writs of
habeas corpus. The superior court denied his first three.
In appellant’s fourth petition for writ of habeas corpus, filed
March 5, 2018, appellant sought relief under Chiu, supra, 59
Cal.4th 155, which held that aiders and abettors may not be
convicted of first degree murder under the natural and probable
consequences doctrine. After full briefing, the court granted the
petition and vacated appellant’s first degree murder conviction on
December 11, 2018. It found that appellant’s jury had been
instructed with both valid and invalid theories of aider and
abettor liability for first degree murder, and that it could not find

6
beyond a reasonable doubt that the jury had relied on a legally
valid theory in convicting appellant. The prosecution elected not
to retry appellant, and on May 29, 2019 the superior court
resentenced him to 15 years to life for second degree murder, plus
25 years for the firearm enhancement.
III. Section 1170.95 Proceedings
On June 21, 2019, appellant filed a petition for
resentencing under section 1170.95. The superior court
appointed counsel for appellant and directed the prosecution to
respond to appellant’s petition.
The prosecution filed a response on February 14, 2020. It
argued that appellant was ineligible for resentencing because he
was either the actual killer or a direct aider and abettor.
Specifically, it contended that appellant “could still be convicted
of murder despite the change in the law.” The prosecution
attached a copy of our prior opinion to its response.
Appellant, now represented by counsel, filed a reply on
March 27, 2020. Like the prosecution, he relied primarily on our
prior opinion for his factual summary, though he “supplement[ed]
the facts with direct references from the Reporter’s and Clerk’s
Transcripts,” excerpts of which he attached to the reply.
Appellant argued that he made a prima facie case for relief,
which the prosecution had failed to adequately rebut. He further
contended that “there is a substantial probability that he was
convicted as a natural and probable consequences aider and
abettor,” and “there is nothing in the record to show, as a matter
of law, he was necessarily convicted on a still valid theory that he
was the actual perpetrator or that he specifically intended to aid
and abet the murder, rather than some lesser target offense.”

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 The superior court concluded that appellant made a prima
facie showing of eligibility for relief and issued an order to show
cause on June 11, 2020. Both sides announced ready on August
26, 2020, and the court held a telephonic show cause hearing on
September 30, 2020.
At the hearing, the prosecution opened its argument by
asserting that it bore the burden “to prove that the defendant
could be convicted of murder, first or second degree, in a post
1170.95 environment.” The prosecution contended appellant
could be convicted as the actual shooter, as a direct aider and
abettor, as a conspirator, or under the “catch-all theory” of
implied malice murder. The prosecution did not introduce any
new or additional evidence in support of these theories; it relied
entirely on transcripts from appellant’s trial and our prior
opinion.
Appellant responded that there was insufficient evidence
that he intended to aid and abet a murder as opposed to a lesser
crime, such as an assault; he emphasized the lack of evidence
regarding the moments prior to the shooting as well as expert
testimony that 8-Tre Hoovers’ activities included both murders
and assaults. Appellant also urged the court to employ the
“alternative theory instructional error analysis,” because “you
can’t be sure beyond a reasonable doubt that had the jurors not
been instructed on a natural and probable consequences theory,
they still would have convicted him of murder.” He, too, relied on
the trial transcripts and our appellate opinion. The court took
the matter under submission.
The court denied appellant’s petition on November 20,
2020. In its written memorandum of decision, the court made
factual findings as summarized above. It then stated that

8
appellant was only entitled to relief under section 1170.95 “if he
could not have been convicted of first or second degree murder
had [section 1170.95] been in effect at the time of the commission
of the crime.” The court concluded appellant did not meet this
standard for two reasons, and therefore was ineligible for relief
“beyond a reasonable doubt.”
First, it found “the record clearly reflects that Petitioner
acted with a reckless indifference to human life and was a major
participant in the underlying felony.” Here, the court
emphasized appellant’s antagonistic t-shirt, his choice to walk
from the car to Hammond’s residence to carry out the shooting,
and his attempts to misdirect police after the incident. It did not
specify what the underlying felony was; appellant had not been
charged with any, nor had the prosecution proceeded on a felony
murder theory. Second, the court concluded appellant “could
have been convicted as a direct aider and abettor acting with the
intent to kill.” The court again emphasized the gang evidence,
including the tattoo marking appellant as a “rascal,” as well as
appellant’s failure to render aid to Lyles or otherwise express
shock or anger at the shooting. The court rejected appellant’s
“alternative theory instructional error analysis” as “misplaced,”
because “section 1170.95 instructs the parties and the court who
bears the burden of proof and what that burden is.”
Appellant timely appealed.2

2 After he filed his notice of appeal, thereby divesting the
superior court of jurisdiction over his case, appellant asked the
superior court to reconsider its ruling. The court subsequently
issued an amended memorandum of decision. Appellant asked
this court to take judicial notice of the amended memorandum of
decision, which he now argues should not be considered because
the court lacked jurisdiction to enter it. We denied his request for

9
 DISCUSSION
I. Governing Law
Effective January 1, 2019, California “‘amend[ed] 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.’ (Stats. 2018, ch. 1015, § I, subd. (f).)” (People v. Gentile
(2020) 10 Cal.5th 830, 841-842 (Gentile).) These amendments
were made via the addition of three separate provisions to the
Penal Code. (Id. at p. 842.)
First, to amend the felony murder rule, the Legislature
added section 189, subdivision (e), which provides: “A participant
in the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” Because appellant was neither charged with an
underlying felony, nor prosecuted under the felony murder

judicial notice and do not consider the extrajurisdictional
amended memorandum of decision. (See People v. Alanis (2008)
158 Cal.App.4th 1467, 1472-1473.)

10
theory, this provision is, as appellant contends, inapplicable here
and requires no further discussion.3
Second, to amend the natural and probable consequences
doctrine, the Legislature added section 188, subdivision (a)(3).
That statute provides, “Except as stated in subdivision (e) of
Section 189 [felony murder liability], 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.” This new requirement that a principal
act with malice “eliminates all murder liability under the natural
and probable consequences doctrine.” (People v. Eynon (2021) 68
Cal.App.5th 967, 974, citing Gentile, supra, 10 Cal.5th at p. 839;
see also Gentile, supra, at p. 843.)
Finally, the Legislature added section 1170.95 to provide a
procedure for individuals convicted of murder under the felony
murder rule or the natural and probable consequences doctrine to
have their murder convictions vacated and to be resentenced on
any remaining counts. (Gentile, supra, 10 Cal.5th at p. 843; §
1170.95, subd. (a).)
The first step in the section 1170.95 procedure is for the
person seeking resentencing to file a petition with a declaration
asserting “(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

3 While respondent does not go so far as to agree with
appellant, it states that it “does not rely on the superior court’s
alternative position that appellant was a major participant in an
underlying felony who acted with reckless indifference to human
life. That theory of murder liability requires the existence of an
enumerated felony under section 189, but it is unclear what that
felony would be in this case.”

11
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 trial at which the petitioner
could be convicted for 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 1, 2019.” (§ 1170.95, subds. (a), (b)(1)(A).) If the petition
is facially sufficient, “the trial court must (1) appoint counsel for
the petitioner if requested, (2) allow the People to file a response
to the petition and allow the petitioner to file a reply, and (3)
determine whether the petitioner has made a prima facie case for
eligibility or entitlement to relief.” (People v. Eynon, supra, 68
Cal.App.5th at p. 974, citing People v. Lewis (2021) 11 Cal.5th
952, 960.)
“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 the new sentence, if any, is not greater than
the initial sentence.’ (§ 1170.95, subd. (d)(1).) At the hearing, the
prosecutor and the petitioner may rely on the record of conviction
or offer new or additional evidence. (§ 1170.95, subd. (d)(3).)”
(People v. Lewis, supra, 11 Cal.5th at p. 960.) As originally
enacted, section 1170.95, subdivision (d)(3) provided that “the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (Former § 1170.95, subd. (d)(3).) Pursuant to
Senate Bill No. 775 (2021-2022 Reg. Sess.), which was signed into

12
law on October 5, 2021 (Stats. 2021, ch. 551, § 2) and took effect
January 1, 2022, section 1170.95, subdivision (d)(3) now provides
that “the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder
. . . under California law as amended by the changes to Section
188 or 189 made effective January 1, 2019.” It further states, “A
finding that there is substantial evidence to support a conviction
for murder . . . is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3).)
II. Burden of Proof
The primary issue in this appeal is the burden of proof the
prosecution must bear at the section 1170.95, subdivision (d)(3)
hearing. This is a legal question we review de novo. (Gentile,
supra, 10 Cal.5th at p. 843; People v. Prunty (2015) 62 Cal.4th 59,
71; Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 524; see also
People v. Rodriguez (2020) 58 Cal.App.5th 227, 237, review
granted Mar. 10, 2021, S266652 (Rodriguez).)
The superior court concluded appellant was ineligible for
relief because the prosecution proved he “could still have been
convicted of first degree murder . . . either as a major participant
acting with reckless indifference to human life or as a direct aider
and abettor acting with the intent to kill.” Appellant contends
this was error, as the prosecution should have been required to
prove his ineligibility beyond a reasonable doubt.4 Respondent
agrees, as do we.

4 The appeal was filed and briefed before Senate Bill No.
775 was signed into law. Knowing that our decision in this
matter would likely issue following the law’s January 1, 2022
effective date, such that its provisions would apply to this case,

13
 Although the original text of section 1170.95, subdivision
(d)(3) stated that the prosecution had to prove a petitioner’s
ineligibility for relief beyond a reasonable doubt, appellate courts
were split over what, exactly, the prosecution had to prove to
carry this burden. In People v. Duke (2020) 55 Cal.App.5th 113,
123 (Duke), review granted Jan. 13, 2021, S265309, depublished
Nov. 23, 2021, S265309, the court held that the prosecution was
required to “prove beyond a reasonable doubt that the defendant
could still have been convicted of murder under the new law—in
other words, that a reasonable jury could find the defendant
guilty of murder with the requisite mental state for that degree of
murder.” (Emphasis in original.) The Duke court explained this
standard was “essentially identical to the standard of substantial
evidence.” (Ibid.) Other courts rejected this holding, concluding
that the prosecution was required “to prove beyond a reasonable
doubt each element of first or second degree murder under
current law in order to establish ineligibility.” (People v. Lopez
(2020) 56 Cal.App.5th 936, 949, review granted Feb. 10, 2021,
S265974; see also Rodriguez, supra, 58 Cal.App.5th at p. 244 [“it
is the court’s responsibility to act as independent factfinder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189 and is thus
ineligible for resentencing under section 1170.95, subdivision
(d)(3)”].) The Supreme Court granted review in Duke to consider
whether “the People [can] meet their burden of establishing a
petitioner’s ineligibility for resentencing under Penal Code

we notified the parties of Senate Bill No. 775 and requested that
they address its potential effect on this case at oral argument.
The parties availed themselves of this opportunity at oral
argument.

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section 1170.95, subdivision (d)(3) by presenting substantial
evidence of the petitioner’s liability for murder under Penal Code
sections 188 and 189 as amended by Senate Bill No. 1437 (Stats.
2018, ch. 1015), or must the People prove every element of
liability for murder under the amended statutes beyond a
reasonable doubt?” The Supreme Court granted review in Lopez
and Rodriguez and held them pending resolution of Duke.
On November 23, 2021, the Supreme Court transferred
Duke back to the court of appeal “with directions to vacate its
decision and reconsider the cause in light of Senate Bill No. 775
(Stats. 2021, ch. 551).” The court of appeal has not yet
reconsidered the matter, but Senate Bill No. 775’s amendments
to section 1170.95, subdivision (d)(3) expressly provide that the
prosecution’s burden is “to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” The superior court here erred by holding the
prosecution to a lesser standard.
Respondent urges us to find the error harmless, “because it
is not reasonably probable that appellant would have otherwise
obtained a different result.” Appellant replies there are “analytic
problems underlying Respondent’s contention that any error
involving the trial court’s adoption of a Duke standard was
harmless.” He asserts that the evidence was insufficient to prove
that he intended to aid and abet a murder rather than some
lesser crime; we can “only speculate what findings the trial court
would have made if it properly understood its factfinder
function”; and the court would have been required to “properly
consider . . . omitted facts and evidentiary vacuums within the
totality of the evidence and would then have properly credited the

15
evidentiary vacuums against the party who bore the burden of
proof.” Although we agree with respondent that the error is
subject to harmless error analysis, we agree with appellant that
there is a reasonable probability the result may have been
different had the prosecution been required to bear the
appropriate burden.
The requirement that the prosecution must prove a
petitioner’s ineligibility beyond a reasonable doubt is statutory.
The superior court’s error in applying the wrong legal standard
thus implicated state law only, and it is well-established that the
harmless error test set forth in People v. Watson (1956) 46 Cal.2d
818 (Watson) applies to errors of state law. (See People v. Epps
(2001) 25 Cal.4th 19, 29; People v. Blackburn (2015) 61 Cal.4th
1113, 1135.) The Watson test asks if it is “reasonably probable
that a result more favorable to the appealing party would have
been reached in the absence of the error.” (Watson, supra, 46
Cal.2d at p. 836.)
As explained in Rodriguez, supra, 58 Cal.App.5th at p. 244,
the superior court sits as an “independent factfinder” at the
section 1170.95, subdivision (d)(3) hearing, and in this capacity
must “determine whether the evidence establishes a petitioner
would be guilty of murder under amended sections 188 and 189.”
When the superior court applied an incorrect burden of proof
while performing its factfinding duties in Rodriguez, the court
held that the matter had to be remanded for a new hearing at
which the proper standard of proof would apply. (Id. at p. 245.)
The Rodriguez court did not consider whether the error could be
harmless. However, the Supreme Court expressly left open the
question of whether it “would find harmless error in a case
involving contested factual questions,” (People v. Blackburn,

16
supra, 61 Cal.4th at p. 1135, citing People v. Epps, supra, 25
Cal.4th at p. 30), a classification into which this case squarely
fits. In People v. Epps, the Court concluded that the state law
error at issue “could not possibly have affected the result”
because the sole factual question was whether the defendant
suffered prior convictions, and defendant did not contest that
issue at trial. (People v. Epps, supra, 25 Cal.4th at pp. 29-30.)
Here, in contrast, the entire question of appellant’s guilt was at
issue, and it is reasonably probable that the application of an
erroneous burden of proof clouded the court’s resolution of factual
issues bearing on that ultimate question. We accordingly
conclude the error was not harmless, and that remand for a new
hearing is necessary.
In light of this conclusion, we do not reach appellant’s other
primary contention: that the evidence did not support the court’s
finding that appellant was a direct aider and abettor. The
superior court may consider the parties’ arguments regarding
this issue in the first instance on remand.
III. Alternative Theory Instructional Error Analysis
We do, however, briefly address appellant’s contention that
the superior court should have employed an “alternative theory
instructional error analysis” when considering his eligibility for
relief. We agree with Rodriguez, supra, 58 Cal.App.5th at pp.
239-240, that such analysis is not appropriate in the context of
section 1170.95 petitions.
The “alternative theory instructional error analysis” comes
into play when a superior court instructs a jury on two theories,
one legally correct and the other legally incorrect. Such
instructional error requires reversal unless the reviewing court
finds, beyond a reasonable doubt, that the jury based its verdict

17
on the valid theory. (Chiu, supra, 59 Cal.4th at p. 167; see also
People v. Aledamat (2019) 8 Cal.5th 1, 12-13.) The relevant
question in such cases is “not whether we believe it is clear
beyond a reasonable doubt that the defendant is guilty under the
legally correct theory, but whether we can say, beyond a
reasonable doubt, that the legally incorrect jury instruction did
not taint the actual jury verdict.” (People v. Baratang (2020) 56
Cal.App.5th 252, 263.)
The relevant question at a section 1170.95, subdivision
(d)(3) hearing is whether the petitioner could be found guilty of
murder beyond a reasonable doubt, under one or more of the
theories now recognized as legally correct. The tainting of the
petitioner’s original jury is essentially a given under the section
1170.95 framework. We thus agree with Rodriguez, supra, that
the “backward looking evaluation” contemplated by the
“alternative theory instructional error analysis” is “inconsistent
with section 1170.95, subdivisions (a)(3) and (d)(3)’s explicit
direction to the court to determine if the petitioner could now be
convicted of murder under sections 188 and 189 as amended, not
whether he or she was, in fact, convicted of murder under a still-
valid theory.” (Rodriguez, supra, 58 Cal.App.5th at p. 239.)
We also find persuasive the Rodriguez court’s other reasons
for finding the “alternative theory instructional error analysis
inapplicable. First, “subdivision (d)(3) permits both parties to
present new or additional evidence at the hearing after the
issuance of the order to show cause. If the superior court’s
ineligibility ruling may be based on evidence not heard by the
original trier of fact, the Legislature cannot have intended the
court simply to evaluate the grounds on which the original
verdict was reached.” (Rodriguez, supra, 58 Cal.App.5th at p.

18
239.) Second, “section 1170.95 is available to defendants
convicted of murder following a plea in lieu of a trial. Given the
limited record in many of those cases, it would be impossible to
assess whether a still-valid ground for a murder conviction
existed, let alone to determine beyond a reasonable doubt that
the valid ground was the basis for the plea. Yet section 1170.95
contemplates the same procedure to determine ineligibility in
plea cases as in cases in which the murder conviction was
reached at trial.” (Id. at pp. 239-240.) Like the Rodriguez court,
we find the single hearing procedure set forth in section 1170.95
telling; it is applicable to a wide variety of procedural and factual
scenarios, and must be analyzed consistently across them unless
and until the Legislature provides otherwise. We accordingly
decline appellant’s invitation to apply the “alternative theory
instructional error analysis” to the subset of cases such as this
one, in which no such evidence is introduced. On remand, the
superior court should not apply this analytical framework.

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 DISPOSITION
The judgment is reversed. The matter is remanded for a
section 1170.95, subdivision (d)(3) hearing at which the
prosecution bears the burden of proving appellant ineligible for
relief beyond a reasonable doubt, as described in the amended
text of section 1170.95, subdivision (d)(3) and herein.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MICON, J. *

WILLHITE, ACTING P.J.

CURREY, J.

*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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