People v. Coley

Filed 3/23/22; Modified and Certified for Pub. 4/15/22 (order attached)
Opinion following transfer from Supreme Court

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A159927
v.
DALE JOSEPH EVERETT (Solano County
COLEY, Super. Ct. No. VCR208165)
Defendant and Appellant.

Appellant Dale Joseph Everett Coley appeals from the trial
court’s denial of his petition under Penal Code section 1170.951
seeking resentencing on his conviction for second degree murder
and attempted murder without premeditation. We affirmed the
court’s order in a previous opinion. (People v. Coley (May 7, 2021,
A159927) [nonpub. opn.].) Thereafter, the Supreme Court
granted review and transferred the matter back to us “with
directions to vacate [our] decision and reconsider the cause in
light of Senate Bill No. 775 (Stats. 2021, ch. 551) and People v.
Lewis (2021) 11 Cal.5th 952.” We again affirm.

Further statutory references are to the Penal Code unless
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otherwise indicated.

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 I. BACKGROUND
A. Underlying Facts
Emmanuel Hernandez and Yusef Hussein were walking
along the highway on the evening of January 28, 2009, when
shots rang out from a car. Hernandez suffered a fatal wound in
the back of his neck, and Hussein jumped over a guardrail and
avoided being shot. The source of the gunshots was a car
occupied by appellant, Shane Peters, Richard Eads and Francisco
Soto. The prosecution’s theory at trial was that appellant was
the driver of the car and Peters was the shooter. Eads and Soto
gave state’s evidence against appellant and Peters in return for a
charge of accessory after the fact.
B. Trial
Appellant and Peters were jointly charged with first degree
murder with special circumstances and with attempted murder,
along with various firearm and gang enhancements. (§§ 187,
189, 187/664, 186.22, subd. (b)(1); 12022.53, subds. (d) & (e)(1).)
The jury was instructed on first degree murder based on theories
of premeditation and deliberation and shooting a firearm from a
motor vehicle, second degree murder based on either express or
implied malice, and attempted murder, both with and without
premeditation. (CALCRIM Nos. 520, 521, 600, 601.) They were
given instructions on direct aiding and abetting which advised
them that the People alleged that appellant was an aider and
abettor and that Peters was a direct perpetrator. (CALCRIM
Nos. 400, 401.)

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 At the time of the crimes and at the time of the trial, aiders
and abettors could be guilty of murder even if they did not
personally harbor malice under either the felony murder rule or
the doctrine of natural and probable consequences. (People v.
Johns (2020) 50 Cal.App.5th 46, 57–59.) The jury was not
instructed on felony murder (either of the first or of the second
degree) or the natural and probable consequences doctrine, or on
any target offense other than murder or attempted murder.
The jury returned a verdict of second-degree murder and
attempted murder without premeditation as to both defendants.
As to appellant, the jurors returned true findings on the gang
allegations under section 186.22, subdivision (b) that were
attached to each count, as well as the firearm enhancement that
was alleged as to the murder count under section 12022.53,
subdivisions (d) and (e)(1). As to Peters, the jurors found true the
gang allegations under section 186.22, subdivision (b), but were
unable to reach a verdict on the allegations that he had
personally discharged a firearm causing great bodily injury or
death under section 12022.53, subdivision (d). Appellant was
sentenced to prison for an aggregate term of 40 years to life and
Peters was sentenced to 15 years to life plus 19 years.
C. Changes to the Law of Murder and Attempted Murder
In 2018, several years after the convictions in this case, the
Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.;
Stats. 2018, ch. 1015), which substantially modified the law
relating to accomplice liability for murder. The amendment
eliminated the natural and probable consequences doctrine as a

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basis for finding a defendant guilty of murder (People v.
Gentile (2020) 10 Cal.5th 830, 842–843) and significantly
narrowed the felony-murder exception to the malice requirement
for murder. (§§ 188, subd. (a)(3), 189, subd. (e); see Lewis, supra,
11 Cal.5th at p. 957.)
Among other things, section 188 was amended to provide,
“Malice shall not be imputed to a person based solely on his or
her participation in a crime.” (§ 188, subd. (a)(3).)
Senate Bill No. 1437 also limited the felony-murder rule to cases
where the defendant was the actual killer, acted with an intent to
kill, or acted as a “major participant” in the underlying felony
and with “reckless indifference to human life” as those terms are
used in the statute defining the felony-murder special
circumstance. (§ 189, subd. (e).)
Section 1170.95 was enacted as part of Senate Bill No. 1437
and provided a procedure whereby individuals convicted of felony
murder or murder based on the natural and probable
consequences doctrine could petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if they could not now be convicted of murder under the law
as amended. The petition must contain (1) a declaration by the
petitioner that he or she is eligible for relief, (2) the superior
court case number and year of conviction; and (3) whether the
petitioner requests counsel. If the petition states a prima facie

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showing of the defendant’s entitlement to relief, the court must
issue an order to show cause and hold an evidentiary hearing.
(§ 1170.95, subds. (c) & (d)(1).)
Courts of appeal were initially split as to when the
appointment of counsel was required under section 1170.95. This
split was resolved in Lewis, supra, 11 Cal.5th at p. 957, in which
the Court concluded that if the section 1170.95 petition contains
all the required information, including a declaration that the
petitioner was convicted of murder and is eligible for relief, the
court must appoint counsel to represent the petitioner if
requested. (Ibid.) After the appointment of counsel and the
opportunity for briefing, the superior court should consider
whether the petitioner has made a prima facie showing of
entitlement to relief, at which point the record of conviction may
be considered. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at
p. 957, 970–972.)
In October 2021, the Governor signed Senate Bill No. 775,
(Stats. 2021, ch. 551, § 2), effective January 1, 2022. As relevant
here, Senate Bill No. 775 amends subdivision (a) of section
1170.95 to allow persons convicted of “attempted murder under
the natural and probable consequences doctrine” and
manslaughter (in addition to those convicted of murder) to seek
relief from their convictions, and further amends section 1170.95
to clarify that a person is entitled to an attorney upon the filing of

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a facially sufficient petition (thus memorializing the ruling in
Lewis). (§ 1170.95, subds. (a) & (b)(3).)
Senate Bill No. 775 also added requirements to the process
for evaluating a section 1170.95 petitioner’s prima facie eligibility
for relief: after a facially valid petition is filed and counsel is
appointed, the parties will submit briefing and the trial court
must hold a hearing on the issue of whether a prima facie case
has been made. (§ 1170.95, subd. (c).) Finally, although section
1170.95 was originally available to persons convicted of murder
under a felony murder or natural and probable consequences
theory, Senate Bill No. 775 allows a petition for resentencing to
be filed by any person convicted of murder under any “theory
under which malice is imputed to a person based solely on that
person’s participation in a crime,” consistent with the definition
of malice under section 188, subdivision (a)(3), as modified by
Senate Bill No. 1437. (§ 1170.95, subd. (a)(1).)
D. Appellant’s Section 1170.95 Petition
On March 18, 2019, appellant filed a petition under section
1170.95, requesting that he be resentenced on both his murder
and attempted murder convictions. The prosecution filed a
response stating that appellant acted with intent to kill, and also
acted with reckless indifference to life as a major participant to a
crime. (See § 189, subd. (e).) The court appointed counsel for
appellant, who filed a reply on behalf of appellant. That brief
asserted appellant had stated a prima facie case for relief, that
the record of conviction lacked sufficient evidence of malice, and

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that the record did not establish appellant was a major
participant who acted with reckless disregard for life.
The trial court denied the petition by a written order dated
February 4, 2020. It noted in its order that the jury had not been
instructed on felony murder or murder under a natural and
probable consequences theory. Although acknowledging that the
instructions on implied malice contained a natural and probable
consequences component, the court concluded that the record of
conviction showed the jury had found express malice, i.e., a
specific intent to unlawfully kill, when it convicted appellant of
attempted murder. Appellant therefore would still be convicted
under the statutes for murder as amended by Senate Bill No.
1437, and he was not entitled to relief under section 1170.95.
Appellant appealed. We issued an opinion affirming the
judgment prior to the filing of the decision in Lewis or the
enactment of Senate Bill No. 775. We now consider appellant’s
arguments in light of those developments.2
II. DISCUSSION
A. Prima Facie Case
Appellant argues the trial court erred in denying his
section 1170.95 petition without issuing an order to show cause
and holding an evidentiary hearing as required by section
1170.95, subdivisions (c) and (d)(1). He submits the court should
not have considered the record of conviction to determine that he

2Codefendant Peters also filed a petition seeking
resentencing under section 1170.95, which was denied by the
court. His appeal of that order is pending. (People v. Peters,
A162911.)

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directly aided and abetted the killer in this case and acted with
an intent to kill, and claims that once he filed a petition that was
facially adequate under section 1170.95, subdivision (b)(1), a
prima facie case was established and could not be controverted by
information in the record of conviction. We review his contention
de novo. (People v. Harrison (2021) 73 Cal.App.5th 429, 437
[whether court conducted a proper inquiry about whether a prima
facie case for relief had been established under section 1170.95 is
reviewed de novo].)
In Lewis, supra, 11 Cal.5th at pp. 970–972, the court held
that it was proper for trial courts to consider the record of
conviction in determining whether the defendant had made a
prima facie case for relief under section 1170.95. Although the
court should not engage in factfinding at the prima facie stage,
“ ‘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.” ’ ” (Id. at p. 971.)3

3 The trial court noted in a footnote that in addition to
harboring express malice, appellant was a major participant who
acted with reckless disregard for human life. This would render
appellant ineligible for relief under section 189, subdivision (e),
and is the same standard used to hold aiders and abettors liable
for the felony-murder special circumstance under section 190.2,
subdivision (d). Appellant was acquitted of first-degree murder
and consequently no special circumstance was found true. But
because the court’s finding on this point was not dispositive and
because our review is de novo, we need not consider whether the
court engaged in unauthorized factfinding at the prima facie
stage.

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 In this case, appellant filed a facially valid petition and the
court appointed counsel. The matter was fully briefed, as
required by section 1170.95, subdivision (c). Consistent with
Lewis, there was no error in considering the record of conviction
in determining whether a prima facie case had been made.
As amended by Senate Bill 775, section 1170.95 requires a
hearing as part of the process of determining whether a prima
facie case has been made. Assuming that this was an
ameliorative change in the law which must be applied to
appellant’s case (In re Estrada (1965) 63 Cal.2d 740, 744–745
(Estrada)), the failure to hold a hearing did not cause prejudice
because appellant was ineligible for resentencing as a matter of
law.
As noted, the jury did not receive instructions that it could
convict appellant based on felony murder or the natural and
probable consequences doctrine at trial. A theory of direct aiding
and abetting remains a valid theory after Senate Bill No. 1437.
(Gentile, supra, 10 Cal.5th at p. 848.) The jurors were given a
version of CALCRIM No. 400 that advised them a person could be
guilty of a crime as either a perpetrator or an aider and abettor,
and the prosecution was proceeding under a theory that Peters
was the perpetrator (shooter) and appellant was an aider and
abettor. CALCRIM No. 401 defined aiding and abetting to
require, “1. The perpetrator committed the crime; [¶] 2. The
defendant knew that the perpetrator intended to commit the
crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing

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the crime; [¶] 4. The defendant’s words or conduct did in fact aid
and abet the perpetrator’s commission of the crime.”
Appellant argues that he may have been convicted of
second-degree murder under a theory of aiding and abetting
Peters in an implied malice murder, and that under People v.
Langi (2022) 73 Cal.App.5th 972 (Langi), he is eligible for relief
under section 1170.95 because this was a “theory under which
malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1170.95, subd. (a)(1).) We disagree.
In Langi, the defendant was part of a group who accosted
the victim with the purpose of robbing him. (Langi, supra, 73
Cal.App.5th at p. 975.) The confrontation ended in a fist fight,
and the victim was killed by a blow to the head suffered after he
was punched by one member of the group. (Ibid.) The defendant
argued the jury could have found him guilty of aiding and
abetting an implied malice murder “if it found that (1) the killing
resulted from the actual killer’s intentional act; (2) [Langi] aided
and abetted that intentional act; and (3) the killer ‘deliberately
performed [the act] with knowledge of the danger to, and with
conscious disregard for, human life’—whether or not [Langi]
knew of or consciously disregarded the danger to human life.”
(Id. at p. 981; see also People v. Powell (2021) 63 Cal.App.5th 689,
714–715.) Langi argued “[t]he instructions thus permitted the
jury to impute malice to [him] based solely on his participation in
a crime, without having to find that he personally acted with
malice.” (Ibid.) The Court of Appeal agreed and remanded to the

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trial court for a hearing on whether Langi could be convicted
under the amended definition of murder. (Id. at p. 984.)
Assuming that aiding and abetting an implied malice
murder can involve the imputation of malice based on
participation in a crime even when no instructions have been
given on the natural and probable consequences doctrine, Langi
does not apply because that case involves implied malice. Here,
as the trial court correctly found, appellant’s conviction for
attempted murder demonstrates that he was convicted of
second-degree murder with express rather than implied malice.
As a review of the record on conviction reveals, appellant
was convicted of murder based on his aiding and abetting of the
same shooting that gave rise to the attempted murder conviction.
The jury was instructed by CALCRIM No. 600 that attempted
murder requires a determination that “the defendants intended
to kill that person.” (See People v. Lee (2003) 31 Cal.4th 613, 624;
People v. McCoy (2001) 25 Cal.4th 1111, 1118 [defendant who is
guilty of attempted murder under a direct aiding and abetting
theory must have the specific intent to kill].) An intent to kill is
the equivalent of express malice, at least when there is no
question of justification or excuse, and by finding appellant guilty
of attempted murder, the jury necessarily found he had
personally harbored intent to kill or express malice when he
aided and abetted the second-degree murder. (See People v.
Moon (2005) 37 Cal.4th 1, 29; People v. Smith (2005) 37 Cal.4th
733, 741.)

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 The superior court’s denial of appellant’s section 1170.95
petition without issuing an order to show cause was appropriate.
B. Attempted Murder
Appellant argues he was entitled to resentencing under
section 1170.95 on his attempted murder conviction. Although
our original decision in this matter concluded that section
1170.95 did not apply to attempted murder, Senate Bill No. 775
clarified that the provisions of section 1170.95 apply to attempted
murder and manslaughter, as well as to murder.4 Whether
Senate Bill No. 775 is viewed as an ameliorative change in the
law (see Estrada, supra, 63 Cal.2d at pp. 744–745), or whether
appellant would be entitled to file a new section 1170.95 petition
in light of Senate Bill No. 775’s changes, we assume Senate Bill
No. 775 applies to this case and reconsider whether relief was
required on the attempted murder count under its provisions. It
was not.
Section 1170.95 applies by its terms only to attempted
murders based on the natural and probable consequences
doctrine. (§ 1170.95, subd. (a) [“A person convicted of . . .
attempted murder under the natural and probable consequences

4 Subdivision (a) of section 1170.95 now reads: “A person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have
petitioner’s murder, attempted murder, or manslaughter
conviction vacated and to be resentenced on any remaining
counts. . . .” (Italics added.)

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doctrine . . . may file a petition”].) The jurors in this case were
not instructed on that doctrine. They were given CALCRIM Nos.
400 and 401, on the theory of direct aiding and abetting, as well
as CALCRIM No. 600, which advised them that an attempted
murder conviction required a finding that “the defendants
intended to kill [the victim].” Direct aiding and abetting remains
a valid theory of attempted murder after the enactment of Senate
Bill No. 775. (People v. Sanchez (2022) 75 Cal.App.5th 191, 197.)
The court was not required to grant resentencing on this count.
C. Presentation of New Evidence at Hearing
Appellant claims he had a statutory right to present new
evidence at a hearing under section 1170.95, subdivision (d)(3),
and that by denying him an evidentiary hearing without issuance
of an order to show cause, the court prevented him from
presenting such evidence. We disagree.
Although there might be some circumstances where new
evidence can be introduced to clarify an ambiguous record of
conviction, a section 1170.95 petition is not a means by which a
defendant can relitigate issues already decided. (People v. Price
(2021) 71 Cal.App.5th 1128, 1151–1152, review granted Feb. 9,
2022 (S272572).) And, although appellant alleges he should have
been allowed to present “new evidence” at an evidentiary
hearing, he does not describe what such evidence would be and
had made no showing that the trial court ever denied a request to
present such new evidence.
III. DISPOSITION
The judgment is affirmed.

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 NEEDHAM, J.

We concur.

JACKSON, P.J.

BURNS, J.

People v. Coley / A159927

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Filed 4/15/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A159927
v.
DALE JOSEPH EVERETT COLEY, (Solano County
Super. Ct. No. VCR208165)
Defendant and Appellant.

ORDER CERTIFYING OPINION FOR PUBLICATION
AND MODIFYING OPINION
[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in appeal No. A159927, filed on March 23, 2022, was not
certified for publication in the Official Reports. For good cause appearing,
pursuant to California Rules of Court, rule 8.1105(b) and (c), the opinion is
certified for publication. Accordingly, appellant’s request for publication is
GRANTED.
The nonpublished opinion, filed on March 23, 2022, is ordered modified.
On page 9, in the first sentence of the second full paragraph, “Senate Bill
775” is changed to “Senate Bill No. 775”.
On page 10, in the third sentence of the second full paragraph, both
references to “[Langi]” are changed to “[defendant]”.

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 On page 10, in the fourth sentence of the second full paragraph,
“Langi” is changed to “The defendant”.
On page 11, in the first line of the first partial paragraph, “Langi” is
changed to “the defendant”.

Date: ______04/15/2022_________ _______JACKSON, P.J.___P.J.

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A159927 / People v. Coley

Trial Court:Superior Court of Alameda County

Trial Judge: Honorable Earl Bradley Nelson

Counsel: Robert L. S. Angres, By Appointment of the First District Court
of Appeal under the First District Appellate Project, for Appellant.

Xavier Becerra, Attorney General of California; Lance E. Winters, Chief
Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney
General; Seth K. Schalit, Supervising Deputy Attorney General; Lisa Ashley
Ott, Deputy Attorney General; for Respondent.

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