People v. Whitson

Filed 5/24/22; Opinion following transfer from Supreme Court
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B305714

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA013892)
v.

DARRELL WHITSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed in part,
reversed and remanded in part.
Boyce & Schaefer and Robert E. Boyce, under appointment
by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael Katz, Idan
Ivri and Yun K. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
 In the early 1990’s, defendant and appellant Darrell
Whitson was convicted of first degree murder, three counts of
willful, premeditated, and deliberate attempted murder, and
conspiracy to murder, in a drive-by shooting case. Whitson
petitioned for resentencing as to all five counts pursuant to
Senate Bill No. 1437 (Senate Bill 1437) and Penal Code section
1170.95,1 which provided for vacatur of a murder conviction
obtained under the natural and probable consequences doctrine
or the felony murder theory of liability, if the defendant was not
the actual killer, did not intend to kill, and was not a major
participant in an underlying felony who acted with reckless
disregard for human life. (People v. Martinez (2019) 31
Cal.App.5th 719, 723.) He appealed the trial court’s
postjudgment order denying that petition.
On appeal, we affirmed with respect to the conspiracy to
murder and attempted murder convictions, but reversed and
remanded with respect to the murder conviction.
The Supreme Court granted Whitson’s petition for review.
(S268189, May 26, 2021.) On January 10, 2022, the Supreme
Court transferred the matter back to this court with directions to
vacate our decision and reconsider the case in light of Senate Bill
No. 775. (Stats. 2021, ch. 551, § 2) (Senate Bill 775).
We vacated our March 4, 2021 opinion, and now issue this
revised opinion addressing all of Whitson’s arguments, including
his new arguments that Senate Bill 775 extends section 1170.95
relief to persons convicted of attempted murder and conspiracy to
murder.

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

2
 FACTS AND PROCEDURAL HISTORY2

The Crimes

On July 7, 1991, Whitson was driving a blue Jeep. Fifteen-
year-old Vernon Cox, who testified for the prosecution at trial
under a grant of immunity, was in the passenger seat. Whitson
met codefendant Shon Ramone Yokely.3 The two were members
of a Crips gang, a rival to the Bloods gang to which one of the
victims, Albert Jones, belonged. (Yokely, supra, B074241
[nonpub. opn.].) Whitson told Yokely he was going to drive
around looking for Bloods and invited him to come along. Yokely
agreed, but first ran into a nearby residence. When he returned
there was something in his waistband. (Ibid.) Whitson drove
into Bloods territory, and slowed in front of a residence where
Albert, his brother Paul, his sister Katie, and Katie’s daughter
Mitchshale were standing. (Ibid.) Yokely, who was sitting in the
back seat on the driver’s side, opened fire on the family. He shot
Albert in the shoulder and ear, Katie in the leg, Paul in the leg,
and 14-month-old Mitchshale in the head, killing her. The Jeep
sped away. (Ibid.)

2 Whitson and Yokely were tried together, and their cases
were part of the same appeal. We take judicial notice of this
court’s prior unpublished opinion in People v. Yokely et al. (Jan.
17, 1995, B074241 (Yokely)), from which the facts are drawn. The
opinion spells codefendant’s name “Yokely” in the caption but
“Yokley” in the body of the opinion.

3Cox was intoxicated and had been vomiting just before
the shooting.

3
 “Whitson was confirmed as the driver of the Jeep on that
day by several other witnesses. He was also linked to the car by
the presence of a .25-caliber bullet, which could have been fired
from the .25-caliber automatic he possessed on the date of his
arrest. Whitson also admitted to being the driver, although he
attempted to exculpate himself from the shootings.” (Yokely,
supra, B074241 [nonpub. opn.].)

The Trial

As relevant here, the jury was instructed regarding direct
liability as an aider and abettor (CALJIC No. 3.01), aider and
abettor liability for murder as natural and probable consequence
of assault with a firearm (CALJIC No. 3.02), attempted
premeditated murder (CALJIC No. 8.67), conspiracy to murder
and overt acts, as well as liability for the natural and probable
consequences of acts in furtherance of conspiracy to murder
(CALJIC Nos. 6.10 & 6.11), premeditation and deliberation
(CALJIC No. 8.20), and transferred intent (CALJIC No. 8.65).
The jury found Whitson guilty of first degree murder
(§ 187, subd. (a) [count 1]), three counts of willful, premeditated,
and deliberate attempted murder (§§ 664/187 [counts 2–4]), and
conspiracy to commit murder (§ 182, subd. (1) [count 5]). It
further found that a principal used a firearm in commission of
the crimes in counts 1 through 4, pursuant to section 12022,
subdivision (a)(1). Whitson was sentenced to 25 years to life in
count 1, and three consecutive life sentences with the possibility
of parole in counts 2, 3, and 4. The sentence in count 5 was
stayed pursuant to section 654.

4
Direct Appeal

On appeal before another panel of this court, Whitson
argued that there was insufficient evidence to support the finding
that he was either a co-conspirator or an aider and abettor of the
shooting (Yokely, supra, B074241 [nonpub. opn.]), that certain
weapon evidence was erroneously admitted, and that the trial
court erred in imposing firearm enhancements under sections
12022.5 and 12022.55 (ibid.). With respect to Whitson’s
contention that the evidence was insufficient to support his
convictions, the appellate court concluded “[t]he evidence in this
case was not only substantial; it was overwhelming.” (Ibid.) The
court reduced Whitson’s presentence credit, but otherwise
affirmed the judgment. (Ibid.)

Petition for Resentencing

On March 26, 2019, Whitson filed a petition for
resentencing under section 1170.95. He utilized a standardized
form, and indicated that he was not the killer, did not act with
intent to kill, and was not a major participant in the underlying
felony who acted with reckless indifference to human life. He did
not check the box indicating that he was convicted of second
degree murder under the natural and probable consequences
doctrine. Whitson requested that counsel be appointed to him.
The People filed a response on September 20, 2019,
contending that Senate Bill 1437 was unconstitutional, but that,
even if the court were to find the legislation constitutional,
Whitson was ineligible for relief because: (1) in finding Whitson
guilty of conspiracy to commit murder the jury necessarily found

5
that he harbored an intent to kill; (2) in finding Whitson guilty of
the three attempted murders the jury necessarily found that he
harbored an intent to kill; and (3) the jury’s findings that
Whitson intended to kill the three attempted murder victims
transferred to the murder victim.
Whitson’s appointed counsel filed a reply pursuant to
section 1170.95 on February 20, 2020, arguing for vacatur of his
convictions for murder, attempted murder, and conspiracy to
murder. The reply argued that: (1) the People’s constitutional
arguments were “highly disfavored” and without merit, (2) the
People failed to present facts to rebut the presumption that
Whitson was eligible for relief, (3) Senate Bill 1437 eliminated
aider and abettor liability for murder under the natural and
probable consequences doctrine, and (4) attempted murder
requires independent proof of an aider and abettor’s specific
intent to kill, which the jury did not find in this case.
On March 4, 2020, the trial court denied the petition after
reviewing the pleadings, a “dummy file” created by the clerk’s
office in chambers, and “numerous writs and motions . . .
unrelated to the issues” that codefendant Yokely had filed. The
court did not issue an order to show cause or hold a hearing.
The court ruled that Whitson failed to establish a prima
facie basis for relief, and denied the petition as a matter of law,
stating:
“The case reflected a classic drive-by shooting that was a
particularly vogue activity for gangs at that time. Petitioner was
a very active gang member with the 118th Street East Coast
Crips. The Crips were a bitter rival of the Blood Gangs.
Petitioner was the driver of the vehicle and stopped his car to tell
Yokely, the shooter, that they were on their way to roll around to

6
see some Bloods. Yokely said he wanted to come along. Yokely
went to a house. Petitioner waited for Yokely. And when he
returned to the car, he, Yokely, was holding something in his
waistband. The clear and reasonable inference from these
circumstances is that Yokely was carrying a gun, and they were
going to drive around hunting for Blood gang members to shoot.
This was more than mere involvement in the shooting.
“Petitioner was literally the driver of this expedition.
Petitioner came up with the idea. His driving pattern was very
deliberate. He went to the rival gang’s territory and slowed down
the vehicle so Yokely could shoot. Then he drove off to flee the
scene of the shooting.
“Furthermore respondent’s point is well taken that we
should respect the fact-finding of the jury. Petitioner was also
convicted of three counts of attempted murder, again reflecting
their finding that he had the specific intent to kill.
“In short, petitioner was clearly a major participant in the
killing and acted with reckless indifference to human life.”

Appeal from the Trial Court’s Order Denying Resentencing

On appeal from the trial court’s order denying resentencing,
Whitson contended that because the jury was instructed on a
natural and probable consequences theory of liability in all five
counts, and could have found him guilty on that theory, the trial
court erred in finding Whitson was prima facie ineligible for relief
as matter of law.
At the time of Whitson’s appeal, the courts did not interpret
section 1170.95 to apply to attempted murder or conspiracy to
murder convictions. We therefore affirmed the trial court’s order

7
denying the petition with respect to the convictions for attempted
murder (counts 2, 3, and 4), and for conspiracy to murder (count
5). We reversed and remanded with respect to the murder
conviction in count 1, for the reasons we discuss post.
The Supreme Court granted Whitson’s petition for review
but deferred briefing pending consideration and disposition of
People v. Lopez, S258175, Nov. 13, 2019, or further order of the
court.
On January 10, 2022, the Supreme Court transferred the
matter back to this court with directions to vacate our decision
and reconsider the case in light of Senate Bill No. 775. We
vacated our opinion as ordered.

DISCUSSION

In his supplemental briefing, Whitson contends that the
trial court erred by summarily denying his petition because the
record establishes that the jury was instructed on the natural
and probable consequences theory of liability for murder and
attempted murder. He further contends that his conviction for
conspiracy to commit murder is an “other theory under which
malice is imputed,” such that he is eligible for vacatur and
resentencing of the conspiracy conviction as well. Whitson
asserts that the trial court was required to issue an order to show
cause, conduct a hearing, and allow the parties to present
evidence under section 1170.95, subdivision (c).4

4 Whitson also argues that the trial court erred by engaging
in fact-finding and relying on Yokely’s filings. We need not
address these arguments, however, given that we remand for
further proceedings regarding the convictions for murder and

8
 The People oppose reversal of the trial court’s order with
respect to the murder and conspiracy to murder convictions, but
concede that reversal is appropriate with respect to the
attempted murder convictions.
We reverse and remand for the trial court to conduct
further proceedings with respect to the murder and attempted
murder convictions, but affirm the trial court’s denial of
Whitson’s section 1170.95 petition with respect to the conspiracy
to murder conviction.

Legal Principles

Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder or natural and probable consequences
theory of liability could petition to have his or her conviction
vacated and be resentenced. (§ 1170.95, subd. (a).)
As relevant here, Senate Bill 775 amended section 1170.95
to clarify that “persons who were convicted of attempted
murder . . . under . . . the natural and probable consequences
doctrine are permitted the same relief as those persons convicted
of murder under the same theor[y].” (Stats. 2021, ch. 551, § 1,
subd. (a).) The parties assume, without discussion, that the
amendments to section 775 with respect to attempted murder
apply to Whitson. We agree that the legislation applies with
respect to attempted murder as a clarification of law.5 (Western

attempted murder, and we affirm the denial of relief on the
conspiracy conviction as a matter of law.

9
Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243;
People v. Lee (2018) 24 Cal.App.5th 50, 57).
Pursuant to section 1170.95, a petitioner must submit a
declaration stating that he meets the requirements of the statute
as set forth in subdivision (a), including that “(1) [a] complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder, 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, or
attempted murder under the natural and probable consequences
doctrine[,] (2) [t]he petitioner was convicted of murder, attempted
murder, or manslaughter following a trial or accepted a plea offer
in lieu of a trial at which the petitioner could have been convicted
of murder or attempted murder[, and] (3) [t]he petitioner could
not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a).)
If the petition is facially sufficient and the petitioner has
requested that counsel be appointed, the trial court appoints
counsel. (§ 1170.95, subd. (b)(3).) “Within 60 days after service of
a petition that meets the requirements set forth in subdivision
(b), the prosecutor shall file and serve a response. The petitioner
may file and serve a reply within 30 days after the prosecutor’s
response is served. . . . After the parties have had an opportunity
to submit briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is

5 The amendments make no other changes that affect our
resolution of the issues.

10
entitled to relief, the court shall issue an order to show cause. If
the court declines to make an order to show cause, it shall
provide a statement fully setting forth its reasons for doing so.”
(§ 1170.95, subd. (c).)

Murder Conviction

With respect to Whitson’s murder conviction, the People
argue that the petition fails as a matter of law because the jury
found him guilty of conspiracy to murder, which required that it
first find that Whitson intended to kill. Whitson could therefore
still be convicted of murder after the amendments to sections 188
and 189, and is ineligible for relief.6

6 In the respondent’s brief, the People argued that the three
attempted murder convictions required the jury to find that
Whitson harbored the specific intent to kill Albert, Paul, and
Katie, because the instruction regarding liability for a crime as a
natural and probable consequence of assault with a firearm was
expressly limited to the murder count. The People reasoned that,
because the jury was properly instructed regarding transferred
intent under CALJIC No. 8.65 that “[w]hen one attempts to kill a
certain person, but by mistake or inadvertence kills a different
person, the crime, if any, so committed is the same as though the
person originally intended to be killed, had been killed,” the jury
would have, by necessity, found that the intent to kill the three
other victims had been transferred to Mitchshale, and Whitson
could still be found guilty under the amendments to sections 188
and 189. The People abandoned this argument in supplemental
briefing by conceding that the jury was not instructed that
Whitson was required to possess the intent to kill to be guilty of
attempted premeditated murder.

11
 “[C]onspiracy is a specific intent crime requiring an intent
to agree or conspire, and a further intent to commit the target
crime, here murder, the object of the conspiracy.” (People v.
Swain (1996) 12 Cal.4th 593, 602.) In this case however, the jury
was not instructed that, in addition to finding Whitson intended
to agree to conspire to commit murder, it must also find he
intended to commit murder.7

7 As relevant here, a modified version of CALJIC No. 6.10
was given that deleted a phrase from the form instruction that
states, “and with the further specific intent to commit that
crime.” (CALJIC No. 6.10.) The instruction given by the trial
court is set forth below, with our insertion of the marker “[***]”
to show where the phrase deleted by the trial court would
typically be included in the form instruction:
“A conspiracy is an agreement entered into between two or
more persons with the specific intent to agree to commit the
public offense of murder [***] followed by an overt act committed
in this state by one [or more] of the parties for the purpose of
accomplishing the object of the agreement. Conspiracy is a crime.
“In order to find a defendant guilty of conspiracy, in
addition to proof of the unlawful agreement and specific intent,
there must be proof of the commission of at least one of the overt
acts alleged in the [information]. It is not necessary to the guilt
of any particular defendant that defendant personally committed
the overt act, if [he] was one of the conspirators when such an act
was committed.
“The term ‘overt act’ means any step taken or act
committed by one [or more] of the conspirators which goes beyond
mere planning or agreement to commit a public offense and
which step or act is done in furtherance of the accomplishment of
the object of the conspiracy.
“To be an ‘overt act’, the step taken or act committed need
not, in and of itself, constitute the crime or even an attempt to
commit the crime which is the ultimate object of the conspiracy.

12
 Had the jury been fully instructed with respect to
conspiracy to murder, including the portion of the form
instruction deleted, its guilty verdict would have encompassed
the finding that Whitson intended to kill. (See People v. Medrano
(2021) 68 Cal.App.5th 177, 182–184, 186 (Medrano).) That
finding would have precluded relief for the murder conviction, as
Whitson could still be convicted under section 188, following the
amendments effected by Senate Bill 1437. (See § 188, subd. (a)(1)
[imposing liability for murder “when there is manifested a

Nor is it required that such a step or act, in and of itself, be a
criminal or an unlawful act.”
The trial court also instructed the jury under CALJIC No.
6.11:
“Each member of a criminal conspiracy is liable for each act
and bound by each declaration of every other member of the
conspiracy if such act or such declaration is in furtherance of the
object of the conspiracy.
“The act of one conspirator pursuant to or in furtherance of
the common design of the conspiracy is the act of all conspirators.
“A member of a conspiracy is not only guilty of the
particular crime that to [his] knowledge [his] confederates agreed
to and did commit, but is also liable for the natural and probable
consequences of any [crime] [act] of a co-conspirator to further the
object of the conspiracy, even though such [crime] [act] was not
intended as a part of the agreed upon objective and even though
[he] was not present at the time of the commission of such [crime]
[act].
“You must determine whether the defendant is guilty as a
member of a conspiracy to commit the originally agreed upon
crime or crimes, and, if so, whether the crime alleged [in Count[s]
one, two, three & four] was perpetuated by [a] coconspirator[s] in
furtherance of such conspiracy and was a natural and probable
consequence of the agreed upon criminal objective of such
conspiracy.”

13
deliberate intention to unlawfully take away the life of a fellow
creature”].) However, for reasons unknown to us, the trial court
struck the language in the pattern instruction for CALJIC No.
6.10 that would have instructed the jury that it was required to
find that Whitson intended to commit murder.8
We are not otherwise persuaded by the People’s argument
that the jury’s true finding against Whitson on overt act 5—
charging that “[o]n or about July 7, 1991, the defendants and
others shot and killed 14 month old Mitchshalae [sic] Davis”—
constitutes a jury finding that Whitson intended to kill the
victim. The jury was instructed that an overt act is any step
taken beyond mere agreement and planning toward committing
murder. Significantly, it was further instructed that, “[t]o be an
‘overt act’, the step taken or act committed need not, in and of
itself, constitute the crime or even an attempt to commit the
crime which is the ultimate object of the conspiracy.” Nothing in
these instructions suggests the jury’s true finding equates to a
finding that Whitson possessed the intent to murder. Absent an
express finding by the jury of intent to commit murder, Whitson
is not barred from relief on that basis as a matter of law.9

8The reporter’s transcript is not included in the record on
appeal, so we cannot ascertain why the trial court modified
CALJIC No. 6.10.

9 We reject Whitson’s argument that Mitchshale, or any
other individual, had to be named as the individual who the
defendants intended to kill when they conspired. We agree with
the Ninth Circuit that, under California law, conspiracy to
commit murder may be based on an agreement to kill “‘a human
being’” who is not specifically identified. (United States v. Wicker
(9th Cir. 2005) 151 Fed.Appx. 563, 565.)

14
Attempted Murder Convictions

We agree with the parties that the matter must be reversed
and remanded with respect to the attempted murder convictions
as well. Section 1170.95 has been amended to clarify that it
applies to convictions for attempted murder under a natural and
probable consequences theory of liability. (Stats. 2021, ch. 551,
§ 1, subd. (a); § 1170.95, subd. (a).) Although Whitson was
convicted of three counts of premeditated attempted murder, the
jury was instructed in pertinent part: “To constitute willful,
deliberate, and premeditated attempt to commit murder, the
would-be slayer must weigh and consider the question of killing
and the reasons for and against such a choice and, having in
mind the consequences, decides [sic] to kill and makes [sic] a
direct but ineffectual act to kill another human being.” (CALJIC
No. 8.67) Based on this language, and in particular the
possibility that the jury considered Yokely, and not Whitson to be
the would-be slayer, we cannot conclude as a matter of law that
the jury found Whitson himself harbored the intent to kill. We
therefore reverse the attempted premeditated murder convictions
and remand to the trial court for further proceedings.

Conspiracy to Murder Conviction

As we have discussed, the trial court’s deletion of the phrase
“and with the further specific intent to commit [murder]” from
the jury instruction on conspiracy to murder precludes a finding
that Whitson is ineligible for section 1170.95 relief as a matter of
law with respect to his murder and attempted murder
convictions. The omission of the language regarding specific

15
intent informs our decision regarding whether Whitson can be
found prima facie ineligible for relief for those convictions
because it demonstrates an important limitation on what we
know about the jury’s findings in reaching its verdicts. The
court’s modification of the standard instruction, however, does
not bring Whitson’s conspiracy to murder conviction within the
rubric of section 1170.95. While the omission of the element of
intent to kill might have provided a basis to claim trial error in
connection with the conviction for conspiracy, that was an issue
to be addressed on direct appeal. But the adequacy of the
particular instructions on conspiracy in this case is not relevant
to the predicate question presented in connection with Whitson’s
conspiracy conviction: whether section 1170.95 permits a
petitioner to seek to vacate a conspiracy conviction at all.
We reject Whitson’s assertion that section 1170.95 provides
a mechanism for challenging a conviction for conspiracy to
murder. Our conclusion is based on an interpretation of the
statute and, as explained more fully below, neither the words of
section 1170.95 nor the Legislature’s stated purpose support the
view that the statute applies to a conspiracy to murder
conviction.
“‘We conduct a de novo review of questions of statutory
interpretation. [Citation.] The fundamental task of statutory
interpretation is to determine the Legislature’s intent so as to
effectuate the law’s purpose. [Citation.] “We begin with the
statute’s text, assigning the relevant terms their ordinary
meaning, while also taking account of any related provisions and
the overall structure of the statutory scheme. [Citation.]
Essential is whether our interpretation, as well as the
consequences flowing therefrom, advances the Legislature’s

16
intended purpose. [Citation.]” [Citation.]’ [Citation.]” (People v.
Santos (2020) 53 Cal.App.5th 467, 473.)
The plain language of section 1170.95 does not indicate that
it applies to convictions for conspiracy to murder. Conspiracy to
murder is not mentioned in the statute. This is particularly
significant because the Legislature promulgated Senate Bill 775
in part to amend section 1170.95 to expressly include convictions
for attempted murder and manslaughter in the list of crimes
subject to petition. Those crimes had not been identified in the
original statute. (See Stats. 2020, ch. 551, § 1, subd. (a) [“The
Legislature finds and declares that this legislation . . . [¶] . . .
[c]larifies that persons who were convicted of attempted murder
or manslaughter under a theory of felony murder and the natural
probable consequences doctrine are permitted the same relief as
those persons convicted of murder under the same theories”].) At
the time it added this language, the Legislature had the
opportunity to extend section 1170.95 relief to conspiracy to
murder convictions alongside attempted murder and
manslaughter convictions, but did not. The language of section
1170.95 is unambiguous. The statute does not permit a challenge
to a conviction for conspiracy to murder.
While we need not go beyond the express, unambiguous
language of the statute, the omission of convictions for conspiracy
to murder is consistent with the Legislature’s purpose in enacting
Senate Bills 1437 and 775—to ensure, with certain exceptions
related to felony murder that “a conviction for murder requires
that a person act with malice aforethought[,]” and that
“culpability for murder [is] premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1,
subd. (g).) Senate Bill 1437 added section 1170.95 to the Penal

17
Code 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.” (Stats. 2018, ch. 1015, § 1,
subd. (c).) Senate Bill 1437 also amended sections 188 and 189—
which relate to natural and probable consequences murder and
felony murder, respectively—to accomplish this goal.
Subsequently, Senate Bill 775 was promulgated, in part, to
amend section 1170.95 to clarify that it provides relief for certain
attempted murder and manslaughter convictions. (Stats. 2020,
ch. 551, § 1, subd. (a).) Both bills left section 187, which defines
murder as “the unlawful killing of a human being, or a fetus,
with malice aforethought” unchanged. (§ 187, subd. (a).) The
legislation also left unchanged section 182, which sets the
penalty for conspiracy to commit murder as “that prescribed for
murder in the first degree.”
Nothing in the legislative history of either Senate Bill 1437
or Senate Bill 775 evinces a legislative intent to lessen the
penalty for conspiracy to murder under any circumstance. This is
presumably because the crime as defined in the Penal Code is
based on the conspirator defendant’s own subjective mens rea:
conspiracy to murder requires that a defendant either act with
malice or intend to kill.10 (Medrano, supra, 68 Cal.App.5th at pp.

10 Manslaughter is defined as “the unlawful killing of a
human being without malice.” (§ 192, subd. (a).) A conviction of
voluntary manslaughter does not require a finding of intent to
kill. (See People v. Parras (2007) 152 Cal.App.4th 219, 224

18
182–183 [“[A] conviction of conspiracy to commit murder requires
a finding of intent to kill. [A]ll conspiracy to commit murder is
necessarily conspiracy to commit premeditated and deliberated
first degree murder.”].) A jury’s finding that a defendant is guilty
of conspiracy to murder, when a murder has in fact been
committed, is “in effect [a finding] that [the defendant] was a
direct aider and abettor of the killings.” (Id. at p. 183.) “‘Senate
Bill 1437 does not eliminate direct aiding and abetting liability
for murder because a direct aider and abettor to murder must
possess malice aforethought.’” (Ibid., quoting People v. Gentile
(2020) 10 Cal.5th 830, 848.) In light of the foregoing, we conclude
that the Legislature did not intend to provide relief from
convictions for conspiracy to murder through the filing of a
petition under section 1170.95.
Finally, Whitson argues that his conspiracy to murder
conviction fits within the meaning of the following phrase in
section 1170.95: “other theory under which malice is imputed.”
(Section 1170.95, subd. (a).) This is wholly beside the point with
respect to Whitson’s challenge to the conspiracy to murder
conviction itself. A theory imputing malice is relevant only to
vacating a conviction for one of the statute’s specified crimes,
which do not include convictions for conspiracy. Rather, such a
theory of imputed malice provides a basis only to challenge
Whitson’s convictions for murder and attempted murder, which
we permit under the unique circumstances of this case.

[“voluntary manslaughter may . . . occur when one kills with a
conscious disregard for life but no intent to kill”].)

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 DISPOSITION

The trial court’s order denying Whitson’s resentencing
petition is affirmed as to his conviction for conspiracy to murder
in count 5. As to the murder conviction in count 1 and the
attempted murder convictions in counts 2 through 4, we reverse
and remand to the trial court for further proceedings.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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