People v. Williams

Filed 12/27/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A164862
v.
(Alameda County
LAMAR WILLIAMS, Super. Ct. No. 148769A)
Defendant and Appellant.

In 2005, defendant Lamar Williams was convicted of the first
degree murder of Stephanie Franklin, together with true findings on a
drive-by shooting special circumstance and true findings on allegations
that Williams personally used a firearm and a principal was armed
with a firearm. Williams was sentenced to an aggregate term of 65
years to life imprisonment without the possibility of parole.
On May 29, 2007, we affirmed the conviction. We modified the
sentence to reflect the appropriate term for first degree murder with
special circumstances, life imprisonment without the possibility of
parole, and struck a parole revocation restitution fine as unauthorized.
On February 23, 2022, the trial court summarily denied Williams’
petition for resentencing of his conviction for first degree murder under

1
Penal Code former section 1170.95,1 now section 1172.6,2 on the basis
that Williams failed to make a prima facie case for relief.
Williams appeals the denial of his petition for resentencing. We
find the jury’s true finding on the drive-by shooting special
circumstance allegation, together with the court’s instructions,
conclusively demonstrates the jury found Williams acted with the
requisite intent and conduct to convict him of first degree murder
under the amendments to section 188 and 189 effective January 1,
2019. Therefore, he is ineligible for relief under section 1172.6 as a
matter of law and we shall affirm.
BACKGROUND
A. Direct Appeal
The factual and procedural background set forth below is taken,
in part, from our prior opinion affirming Williams’ conviction for the
first degree murder of Franklin (§ 187, subd. (a)), together with true
findings of a drive-by shooting special circumstance allegation
(§ 190.2(a)(21)) and allegations that Williams personally used a firearm
and a principal was armed with a firearm.3 (People v. Williams (May
29, 2007, A113199) [nonpub. opn.] at p. 5.)

1 All undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered section
1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no
substantive changes to the statute. Throughout this opinion, we cite to
section 1172.6 for ease of reference.
3 Our recitation of the background facts as stated in our prior
opinion is solely for the purpose of efficiently summarizing the
background of this case. In resolving the issue raised on appeal, our
analysis is based on our independent review of the record of conviction
including the jury instructions and jury verdicts, and not the summary
of facts in our prior opinion.

2
 The murder of Stephanie Franklin occurred in connection with a
drive-by shooting that took place following a late-night confrontation at
an eatery in Oakland. Williams arrived at the eatery in his brother’s
car with L.J.,4 a person he was dating. Williams’ brother was driving.
Another car was also there – S.S. was driving and Franklin, L.W. and
G.C. were passengers.
At the eatery, L.W. greeted L.J., hugged her, and tried to “ ‘hit on’
her, ” which angered Williams. Williams reprimanded L.J. and told her
to order her food and return to the car; she complied. L.J. saw L.W.
sneering at Williams while the men talked. L.W. returned to S.S.’s car
and said some guy “ ‘disrespected him’ ” while he was trying to be
friendly. L.W. told S.S. to take him home, but then apparently changed
his mind and asked her to go back to the eatery and she drove back to
the eatery.
Williams testified that after L.J. had spoken with L.W., L.W.
smirked at Williams and told him “ ‘I’m on one.’ ” Williams thought the
comment suggested L.W. was “ ‘looking for trouble.’ ” Williams also
thought L.W. had a gun because he did not back down from Williams.
S.S. drove away, but then returned and stopped by a nearby street
corner, and Williams thought L.W. intended to shoot him. Williams
borrowed his brother’s cell phone to call Lanare Wise, who said he
would come right away. Williams knew Wise to be armed. Williams
told Wise over the phone that maybe the people in S.S.’s car were about
to shoot him.

4 Pursuant to the California Rules of Court governing “Privacy in
Opinions,” we refer to certain persons by their initials. (Cal. Rules of
Court, rule 8.90(b)(4), (10), (11).)

3
 Wise arrived in a car driven by Jideofor Ajaelo. Wise was in the
front passenger seat and two other passengers (A.G. and M.A.) were in
the rear seat. Williams got into the car, sat in the rear passenger seat
behind Wise, and pointed at S.S.’s car, saying “ ‘That the car right
there,’ ” or “ ‘There they go, right there.’ ” S.S.’s car drove off and
Ajaelo followed it.
Williams claimed he did not know Wise had a gun at that time.
A.G., a passenger in the back seat, had a shotgun. Williams was
surprised and took the shotgun to stop A.G. from using it.5 Wise then
unexpectedly fired a handgun continuously at S.S.’s car until the
chamber was empty.6 After Wise emptied his gun, he looked back at
Williams as if to ask why he had not been shooting. Williams stuck the
shotgun out the window and pretended it was jammed and would not
fire. He later told the police the shotgun fired accidentally into the air.7
At trial, Williams testified he did not tell Wise to do anything to L.W.
or the people in S.S.’s car, and that Wise acted on his own.

5 At trial, A.G. testified that Williams got into Ajaelo’s car and
then Ajaelo drove next to another car. A.G. heard shots and ducked
because he thought someone was shooting at them. Then he realized
the shots were fired from an area where Williams was sitting.
Although he did not see the gun, A.G. knew by the sound that it was a
handgun. A.G. claimed Wise was not the shooter. A.G. also testified
that he did not remember seeing a shotgun and Williams did not fire a
shotgun.
6 The police recovered 15 cartridge cases at the scene that came
from a single firearm.
7 The police did not recover any shotgun pellets at the scene or in
S.S.’s car. A shotgun loaded with five shotgun shells was found in the
backseat of a car at Wise’s residence. After the shotgun was test fired,
the firing pin did not advance sufficiently to fire a second round.

4
 As S.S. drove her car away from the eatery, she heard gunshots
coming from the back right rear of the car driving on her left (later
identified as Ajaelo’s car), and S.S. felt a bullet hit her leg. S.S. saw
what looked like a rifle sticking out of the back right window of Ajaelo’s
car. S.S. screamed at the people in Ajaelo’s car to stop shooting,
stopped her car, and tried to flee on foot, but fell because of her gunshot
wound. S.S. was shot five times but survived. Franklin died from a
gunshot wound to her back. L.W. was shot in the arm and the leg but
survived. G.C. was uninjured.
After the shooting ended, Ajaelo drove Williams back to the
eatery. Williams, who had been gone about 10 minutes by that time,
returned to his brother’s car and asked his brother to drive him and
L.J. to another location. Williams did not say where he had been and
L.J. did not ask him; Williams said nothing about the shooting.
Williams was charged by information with the murder of
Franklin, with a drive-by shooting special circumstance allegation; the
attempted murders of S.S., L.W., and G.C.; and being a felon in
possession of a firearm. The information also alleged firearm and a
prior conviction sentence enhancements. Wise and Ajaelo were charged
in the same information, but tried separately.
The jury found Williams guilty of first degree murder,
premeditated attempted murder (three counts), and being a felon in
possession of a firearm. The jury also found true the drive-by shooting
special circumstance allegation. The jury found not true the allegations
of personal and intentional discharge of a firearm; the jury found true
allegations of personal use of a firearm and a principal being armed
with a firearm.

5
 Williams was initially sentenced to 35 years to life without the
possibility of parole for the Franklin murder, consecutive terms of 10
years to life for the attempted murders, and a two-year concurrent term
for being a felon in possession of a firearm; sentence enhancements for
the personal use of a firearm were stayed.
On Williams’ direct appeal in 2007, we affirmed the convictions,
but modified the sentence on the conviction for first degree murder
with a special circumstance. The sentence was modified to reflect a
term of life imprisonment without the possibility of parole and the
parole revocation restitution fine was stricken as unauthorized. The
Supreme Court denied review. (People v. Williams (dec. Aug. 29, 2007,
S153931).)
B. Section 1172.6 Petition
On February 8, 2019, Williams filed a section 1172.6 petition
using “a downloadable form” petition and declaration. The petition
included allegations that an information had been filed that allowed
the prosecution to proceed under a theory of the natural and probable
consequences doctrine, that he had been convicted of first degree
murder, and that he could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189, effective
January 1, 2019.
Following the trial court’s appointment of counsel to represent
Williams, the filing of the People’s written response, and a February 23,
2022 hearing, the court summarily denied the petition on the basis that
Williams had failed to make a prima facie case. At the hearing, the
court found “no prima facie case based on the record of conviction which
include[d] the jury verdicts;” “[t]here was not a natural and probable

6
consequence theory . . . nor a felony murder theory;” and “[t]he jury
made an express finding that . . . Williams acted with the intent to kill”
by its true finding of the drive-by shooting special circumstance
allegation.
This appeal ensued.
DISCUSSION
I. Applicable Law and Standard of Review
Effective January 1, 2019, the Legislature passed Senate Bill
No. 1437 (SB 1437) “ ‘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 . . . who acted with reckless indifference
to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).) SB 1437 amended section 188,
subdivision (a)(3), to require that all principals to murder must act with
either express or implied malice to be convicted of that crime, with the
exception of felony murder under section 189, subdivision (e).
(Stats. 2018, ch. 1015, § 2.) SB 1437 amended section 189,
subdivision (e), to provide that for a felony murder conviction the
defendant had to be the actual killer, an aider and abettor who acted
with the intent to kill, or a major participant who acted with reckless
indifference to human life in the underlying felony. (Stats. 2018,
ch. 1015, § 3.)
SB 1437 added section 1172.6, which provides a procedure for
defendants convicted of murder to seek resentencing if they are able to
establish they could not be convicted of murder under the amendments
to sections 188 and 189 effective January 1, 2019. (Stats. 2018,
ch. 1015, § 4.)

7
 Section 1172.6, subdivision (a) states that 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 for resentencing “when all of the
following conditions apply: [¶] (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) The 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. [¶] (3) The petitioner could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a).)
Section 1172.6, subdivision (b) requires the petitioner to submit a
declaration that avers eligibility for relief under the statute (based on
the requirements of subdivision (a)), states the superior court case
number, the year of conviction, and whether the petitioner requests
appointment of counsel. (§ 1172.6, subd. (b).)
Section 1172.6, subdivision (c), which establishes how the trial
court must evaluate the petition, reads in relevant part: “Within 60
days after service of a petition that meets the requirements set forth in

8
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
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.”
In ascertaining whether a defendant has made a prima facie case
for relief, the trial court may look at the record of conviction, which will
necessarily inform its “prima facie inquiry under section [1172.6],
allowing the court to distinguish petitions with potential merit from
those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)8
We review de novo whether the trial court conducted a proper
inquiry under section 1172.6, subdivision (c). (People v. Harrison
(2021) 73 Cal.App.5th 429, 437.)
II. Williams Was Not Entitled to Section 1172.6 Relief
Williams filed a petition that included allegations that an
information had been filed against him that allowed the prosecution to
proceed under the natural and probable consequences doctrine, he was
convicted of first degree murder, and he could not presently be
convicted of first degree or second degree murder because of changes to

8 Prior to being renumbered section 1172.6, Senate Bill No. 775,
which took effect on January 1, 2022, amended former section 1170.95
to codify certain holdings of Lewis, including the standard for
determining the existence of a prima facie case. (Stats. 2021, ch. 551,
§ 1, subd. (b).)

9
section 188 or 189 made effective January 1, 2019. (§ 1172.6, subd. (a).)
Because the petition’s allegations must be accepted as true, the only
basis to refuse to issue an order to show cause is if the record of
conviction conclusively demonstrates Williams was not entitled to relief
as a matter of law. (Lewis, supra, 11 Cal.5th at p. 971.)
The dispositive issue before us is whether the jury’s true finding
on the drive-by shooting special circumstance allegation, together with
the court’s instructions, demonstrates as a matter of law that Williams
was convicted on a still valid theory of murder under the amendments
to section 188 or 189 effective January 1, 2019. For the reasons we now
explain, the answer is in the affirmative.
It is well settled that SB 1437 “does not eliminate direct aiding
and abetting liability for murder because a direct aider and abettor to
murder must possess malice aforethought.” (People v. Gentile (2020) 10
Cal.5th 830, 848 (Gentile).)9 “Under a direct aider and abettor liability
theory, the prosecution must prove the person who is not the actual
killer ‘engaged in the requisite acts [actus reus] and had the requisite
intent [mens rea]’ to aid and abet the target crime of murder.” (People
v. Pacheco (2022) 76 Cal.App.5th 118, 124 (Pacheco)10.) A direct aider

9 Gentile, supra, 10 Cal.5th 830, was abrogated in part on another
ground by Stats. 2021, ch. 551, § 2, which amended section 1172.6,
subdivision (g), to expressly allow defendants whose convictions are not
final to seek relief under SB 1437 on direct appeal.
10 On May 18, 2022, our Supreme Court granted review in Pacheco,
supra, 76 Cal.App.5th 118 (S274102) but has deferred further action
pending disposition of People v. Curiel (dec. Nov. 4, 2021, G058604
[nonpub. opn.]), review granted January 26, 2022, S272238 [lead case],
which presents the following issue: “Does a jury’s true finding on a
gang-murder special circumstance (Penal Code, § 190.2, subd. (a)(22))
preclude a defendant from making a prima facie showing of eligibility
for resentencing under Penal Code section [1172.6]?”

10
and abettor’s “guilt is based on a combination of the direct perpetrator’s
acts and the aider and abettor’s own acts and own mental state.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117, italics in original.)
“ ‘The aider and abettor doctrine merely makes aiders and abettors
liable for their accomplices’ actions as well as their own. It obviates the
necessity to decide who was the aider and abettor and who [was] the
direct perpetrator or to what extent each played which role.’ ” (People
v. Gomez (2018) 6 Cal.5th 243, 279, italics in original.) “[A]s long as
each juror is convinced beyond a reasonable doubt that defendant is
guilty of murder as that offense is defined by statute, it need not decide
unanimously by which theory he is guilty. [Citations.] More
specifically, the jury need not decide unanimously whether defendant
was guilty as the aider and abettor or as the direct perpetrator.”
(People v. Santamaria (1994) 8 Cal.4th 903, 918.)
The jury here was instructed on aiding and abetting using
language in CALCRIM Nos. 401 and 403. As to the concept of direct
aiding and abetting for “[i]ntended [c]rimes,” which included murder,
the jury was informed as follows:
“To prove that the defendant is guilty of a crime based on
aiding and abetting that crime, the People must prove that: [¶] 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 the crime [¶] AND [¶]
4) The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime. [¶] Someone aids and
abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.” (CALCRIM No. 401.)

11
As to the concept of aiding and abetting a murder under the natural
and probable consequences doctrine, the jury was informed as follows:
“Every person who willfully, unlawfully and maliciously
discharges a firearm from a motor vehicle is guilty of a violation
of Penal Code section 12034, subdivision (d), a crime. [¶] . . . [¶]
In order to prove this crime, each of the following elements must
be proved: [¶] 1. A person unlawfully discharged a firearm from a
motor vehicle, and [¶] 2. The discharge of the firearm was willful
and malicious. [¶] . . . [¶]

“Before you may decide whether the defendant is guilty of
murder, you must decide whether he is guilty of Penal Code
section 12034(d). [¶] To prove that the defendant is guilty of
murder, the People must prove that: [¶] 1. The defendant is
guilty of aiding and abetting the crime of Penal Code section
12034(d). [¶] 2. During the commission of the crime of Penal Code
section 12034(d), the crime of murder was committed. [¶] AND
[¶] 3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
the murder was a natural and probable consequence of the
commission of the crime of Penal Code [section] 12034(d).

“The evidence must show that an aider and abettor
intended to facilitate or encourage the target offense of Penal
Code [section] 12034(d) before or during the commission of the
murder and attempted murders. [¶] A natural and probable
consequence is one that a reasonable person would know is likely
to happen i[f] nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence. If the murder was
committed for a reason independent of the common plan to
commit . . . Penal Code [section] 12034(d), then the commission of
the murder was not a natural and probable consequence of Penal
Code section 12034(d). [¶] To decide whether the crime of murder
was committed, please refer to the separate instructions that I
will give you on that crime.” (CALCRIM No. 403; italics in
original).

12
 Because the aiding and abetting instructions did not refer to the
degree of murder, the court directed the jurors to separate instructions
explaining they could find Williams guilty of first degree murder under
two theories: (1) “[a]ll murder which is perpetrated by any kind of
willful, deliberate and premeditated killing with express malice
aforethought is murder of the first degree,” further stating that
“[m]alice is express when there is manifested an intention unlawfully
to kill a human being;” or (2) “[m]urder which is perpetrated by means
of discharging a firearm from a motor vehicle intentionally at another
person outside of the vehicle when the perpetrator specifically intended
to inflict death, is murder of the first degree,” further stating that an
essential element of the drive-by murder is that “[t]he defendant
specifically intended to kill a human being.”
The court further instructed the jurors that they did not have to
unanimously agree as to the theory of murder but they did have to
unanimously agree as to the degree of murder: “If you find the
defendant guilty of murder in the first degree, it is not necessary that
the jury unanimously agree as to whether it is first degree murder
based upon premeditation and deliberation or whether it is first degree
based upon a drive-by shooting with intent to kill or whether it is first
degree based upon aiding and abetting. It is only necessary that the
jury unanimously agree that the killing was murder in the first degree
under any of these theories.”
The jurors were also instructed that only if they found Williams
guilty of murder in the first degree were they then to consider whether
the drive-by shooting special circumstance was true. The jury was

13
informed, using language in CALCRIM Nos. 700, 705, and 735 as
follows:
“As to Count 1 [accusing defendant of having committed
the crime of murder, a violation of Section 187 of the Penal Code]
only, if you find the defendant in this case guilty of murder of the
first degree, you must also decide if the People have proved that
the special circumstance is true. [¶] The People have the burden
of proving the special circumstance beyond a reasonable doubt. If
the People have not met this burden, you must find the special
circumstance has not been proved. [¶] In order for you to return a
finding that a special circumstance is or is not true, all 12 of you
must agree. [¶] . . . [¶]

“In order to prove the special circumstance of Discharge
from Vehicle, the People must prove not only that the defendant
did the act charged, but also that he acted with a particular
intent or mental state. The instruction for the special
circumstance explains the intent or mental state required. [¶] . . .
[¶]
“The defendant is charged with the special circumstance of
committing murder by shooting a firearm from a motor vehicle.
[¶] To prove that this special circumstance is true, the People
must prove that: [¶] 1) The defendant or Lanare Wise shot a
firearm from a motor vehicle, killing Stephanie Franklin [¶] 2)
The defendant or Lanare Wise intentionally shot at a person who
was outside the vehicle [¶] AND [¶] 3) At the time of the
shooting, the defendant intended to kill.”

Williams argues the trial court erred in summarily denying his
section 1172.6 petition because his first degree murder conviction could
have been predicated on a theory under which malice is imputed based
solely on his participation in a crime. Relying on Pacheco, supra, 76
Cal.App.5th 118 and People v. Offley (2020) 48 Cal.App.5th 588 (Offley),
Williams also argues that the trial court’s instruction on the crime of
willful discharge of a firearm from a vehicle under section 12034,
subdivision (d), together “with [the] aiding and abetting” instructions

14
under CALCRIM Nos. 401 and 403, “open[ed] the path to a verdict of
murder based on the natural and probable consequences doctrine.” He
claims that “[t]his is a particularly likely scenario in this case, because
the jury seemed to credit [his] testimony that he was not the shooter.
Thus, the jury might have also credited his testimony that although he
had called Wise to the scene, he did not direct Wise to do anything, and
Wise acted on his own. Because he (Williams) admitted calling Wise to
the scene, the jury could have found that he had aided and abetted the
discharge of a firearm. . . . The result would then have been a finding
on the special circumstance based on the natural and probable
consequences theory that murder was the natural and probable
consequence of aiding the discharge of a firearm.”
Williams’ arguments are not persuasive as they are based on the
premise that while the jury’s true finding of the drive-by shooting
special circumstance “certainly establishes” he intended to kill
Franklin, it does not establish that he directly aided and abetted the
killing because the finding “did not establish as a matter of law that
[he] had acted with both the mens rea and the actus reus required of an
aider and abettor” of murder. Williams contends the jury could have
potentially looked to the instructions on aiding and abetting a murder
under the natural and probable consequences doctrine and found he
intended to kill Franklin under the drive-by shooting special
circumstance allegation; however, under the natural and probable
consequences theory, he only aided and abetted the crime of
discharging a weapon. Hence, “without weighing the evidence,”
Williams contends it is possible he intended to kill Franklin, but he did

15
nothing to directly “aid, facilitate, promote, encourage, or instigate” the
murder. (CALCRIM No. 401).
Critically, Williams’ evaluation of how the jury might have
interpreted the court’s instructions does not take into account that we,
the appellate court, “must consider the instructions together as a
whole, to determine whether it is reasonably likely a jury would
interpret an instruction in a particular way, because we presume jurors
understand and correlate all of the instructions” (People v. Burton
(2018) 29 Cal.App.5th 917, 925) and the jurors are “presumed to have
followed the court’s instructions” (People v. Sanchez (2001) 26 Cal.4th
834, 852).
We agree with Williams that the drive-by shooting special
circumstance instruction requires only that the jury find he had the
intent to kill and does not address whether he acted as a perpetrator or
aider and abettor in the murder. Nevertheless, in considering the other
instructions given to the jurors on the theories of first degree murder,
and the theories of aiding and abetting a first degree murder, we
conclude there is no merit to his argument that the jury could have
potentially determined he was guilty of first degree murder based on a
finding that he intended to kill Franklin, but that he only aided and
abetted the crime of discharging weapon for which murder was a
natural and probable consequence.
Williams’ argument fails at the outset as it is premised on the
assumption the jurors could find him guilty of first degree murder
based solely on a finding that he had aided and abetted the discharge of
a firearm for which murder was a natural and probable consequence.
However, and as we have noted, the jurors were instructed that they

16
could only convict Williams of first degree murder if they found he had
committed that crime as a direct perpetrator or based on aiding and
abetting either premeditated and deliberate malice aforethought
murder, or murder perpetrated by a drive-by shooting with the intent
to kill.
In determining whether Williams was guilty of aiding and
abetting first degree murder, the jurors would not have looked at
instructions addressing aiding and abetting the discharge of a weapon
for which murder was a natural and probable consequence. Rather, the
jurors would have looked at the instructions on aiding and abetting a
murder as the “intended crime,” which informed them that they could
find Williams guilty as an aider and abettor only if they found the
People had proven Williams had acted with the intent to kill (mens rea)
and by his words and conduct he had in fact aided and abetted the
murder (actual reus). (CALCRIM No. 401.) Then, having found
Williams guilty of murder in the first degree as an aider and abettor of
first degree murder, the jury was directed to consider the drive-by
shooting special circumstance allegation. By their true finding of the
drive-by shooting special circumstance, the jurors defined the theory of
the crime and found Williams had acted with the intent to kill, the
“ ‘functional equivalent’ of express malice” (People v. Catlin (2001) 26
Cal.4th 81, 151), thereby demonstrating their rejection of any reliance
on the theory of aiding and abetting a murder under the natural and
probable consequences doctrine.
In other words, by the jury’s true finding of the drive-by shooting
special circumstance, coupled with the earlier findings that the jury
must have necessarily made to find Williams guilty of first degree

17
murder, as either the perpetrator or an aider and abettor, the record of
conviction conclusively demonstrates the jury found he had acted with
the requisite intent and conduct to convict him of first degree murder
under the amendments to section 188 and 189 effective January 1,
2019, thereby rendering him ineligible for relief under section 1172.6.
Williams’ reliance on the holding in Pacheco, supra, 76
Cal.App.5th 118, is misplaced. Pacheco is inapplicable to the case
before us because its analysis is limited to the issue of the preclusive
effect of the jury’s true finding of the gang special circumstance
allegation. (Pacheco, supra, 76 Cal.App.5th at p. 127.) In a footnote,
the Pacheco court is clear that it did not consider any potential
argument that the jury’s first degree murder finding (premeditation
and deliberation) or the related jury instruction (CALCRIM No. 521
[first degree murder instructions]), caused Pacheco to be ineligible for
relief under section 1172.6 as a matter of law. (Pacheco, supra, 76
Cal.App.5th at p. 127, fn. 2.)
In Pacheco, Pacheco and other gang members jumped two people;
one victim died and the other survived. (Id. at p. 121.) Pacheco was
convicted of first degree murder as an aider and abettor, attempted
murder, and gang participation. (Ibid.) The jury also found true a
gang special circumstance allegation. (Ibid.) The jury was instructed
on aiding and abetting a crime (which would include murder)
(CALCRIM No. 401) and aiding and abetting a murder under the
natural and probable consequences theory. (Pacheco, supra, at
pp. 125–126.) The jury was also instructed that in order to find the
gang special circumstance to be true, the People had to prove: “ ‘[¶] 1. A
perpetrator intentionally killed [the victim]; [¶] 2. At the time of the

18
killing, the defendant was an active participant in a criminal street
gang; [¶] 3. The defendant knew that members of the gang engage in or
have engaged in a pattern of crime gang activity; [¶] 4. The murder was
carried out to further the activities of the criminal street gang; [¶] AND
[¶] 5. The defendant had the intent to kill at the time of the killing.’
(CALCRIM No. 736, italics added.)” (Pacheco, supra, at pp. 127–128.)
The appellate court reversed the trial court’s summary denial of
Pacheco’s section 1172.6 petition as the jury’s true finding on the gang
special circumstance allegation did not render Pacheco ineligible for
relief under section 1172.6 as a matter of law. (Pacheco, supra, 76
Cal.App.5th at p. 121.) The Pacheco court explained as follows: “[T]he
jury’s true finding on the gang special circumstance certainly
establishes Pacheco intended to kill [the victim] at the time of his
killing (the mens rea). But the gang circumstance instruction does not
establish – as a matter of law – that Pacheco directly aided and abetted
the killing of [the victim] (the actus reus).” (Id. at p. 128, italics in
original.) “Therefore, the jury could have potentially found Pacheco
intended to kill [the victim] under the gang special circumstance (the
mens rea), but under the natural and probable consequence theory,
Pacheco only actually aided and abetted the nontarget crime of
disturbing the peace (the actus reus).” (Ibid.)
In sum, Pacheco is inapplicable to the case before us. Unlike in
Pacheco, the People argue that the record of conviction conclusively
demonstrates the jury could not have considered the drive-by shooting
special circumstance allegation without first finding that Williams was
guilty of first degree murder, as either a perpetrator or direct aider and

19
abettor, thereby rendering him ineligible for section 1172.6 relief as a
matter of law. And it is that argument that we find dispositive.
Williams’ reliance on Offley, supra, 48 Cal.App.5th 588, is
similarly misplaced. Offley was convicted of murder, attempted
murder, and shooting at an occupied motor vehicle after he and several
fellow gang members fired shots into a vehicle, killing one occupant and
seriously wounding another. (Id. at pp. 592–593.) The jury was
instructed on the natural and probable consequences doctrine as
follows: “ ‘A member of a conspiracy is not only guilty of a 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 of a co-conspirator to further the object of the conspiracy, even
though that crime 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 that crime.’ ” (Id. at p. 593.)
The trial court summarily denied Offley’s section 1172.6 petition
based on the jury’s true finding of a firearm enhancement allegation
under section 12022.53, subdivision (d). (Offley, supra, 48 Cal.App.5th
at p. 597.) That section imposes a sentencing enhancement if a
defendant, in the commission of certain enumerated felonies,
“personally and intentionally discharges a firearm and proximately
causes great bodily injury [or] death.” The trial court concluded those
findings precluded section 1172.6 relief as a matter of law. (Offley,
supra, at p. 594.)
The appellate court reversed, finding that section 12022.53,
subdivision (d) does not refer to an “ ‘intent to achieve any additional
consequence.’ [Citation.] It is thus a general intent enhancement, and

20
does not require the prosecution to prove that the defendant harbored a
particular mental state as to the victim’s injury or death.” (Offley,
supra, 48 Cal.App.5th at p. 598.) “Because an enhancement under
section 12022.53, subdivision (d) does not require that the defendant
acted either with the intent to kill or with conscious disregard to life, it
does not establish that the defendant acted with malice aforethought.”
(Offley, supra, at p. 599.)
Here, in contrast to the general intent enhancement at issue in
Offley, the jury’s true finding of the drive-by shooting special
circumstance required the jury to find that Williams intended to kill
during the murder. The special circumstance finding, together with
findings the jury necessarily made in determining Williams was guilty
of first degree murder, conclusively demonstrates he was convicted of
first degree murder, and that the jury necessarily rejected any reliance
on the theory of aiding and abetting a 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.
III. Conclusion
For the reasons stated above, the order summarily denying the
petition for resentencing is affirmed. In light of our conclusion, we do
not address the parties’ other contentions.
DISPOSITION
The February 23, 2022 order denying the petition for
resentencing is affirmed.

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 _________________________
Petrou, J.

WE CONCUR:

_________________________
Fujisaki, Acting P.J.

_________________________
Rodríguez, J.

A164862/People v. Williams

22
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Morris Jacobson

Counsel: Office of Attorney General, Rob Bonta, Attorney
General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Catherin A. Rivlin, Supervising
Deputy Attorney General, Basil R. Williams, Deputy
Attorney General, for Plaintiff and Respondent.

First District Appellate Project, Kathy R. Moreno, for
Defendant and Appellant.

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