People v. Harris CA4/1

Filed 7/27/23 P. v. Harris CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080635

Plaintiff and Respondent,

v. (Super. Ct. No. SCD213652)

IVORY MONTEL HARRIS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Laura J. Birkmeyer, Judge. Reversed.
Theresa Osterman Stevenson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Alan L. Amann and A. Natasha
Cortina, Deputy Attorneys General for Plaintiff and Respondent.
In 2004, Ivory Montel Harris was a passenger in a vehicle from which
someone shot at some victims, killing one. (See People v. Harris (Apr. 22,
2011, D055992) [nonpub. opn.].) In 2009, a jury convicted Harris of first
degree murder. (Pen Code,1 § 187, subd. (a).) It found true allegations

supporting a firearm enhancement (§ 12022.53, subds. (d), (e)(1))2,and a gang
enhancement (§ 186.22, subd. (b)(1)). The trial court sentenced Harris to 50
years to life in state prison: 25 years to life for the first degree murder
conviction and a consecutive 25 years for the firearm enhancement. (Harris,
supra, D055992.)
In March 2022, Harris petitioned for resentencing under former section

1170.95 (now section 1172.6)3 based on changes to the felony murder rule
and the natural and probable consequences doctrine (Sen. Bill No. 1437
(Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019)).
After the court appointed counsel for Harris, it denied the petition,
reasoning Harris failed to state a prima facie case for resentencing relief. It
concluded that under the jury instructions, the jury could only have convicted
him of first degree murder by finding he had the intent to kill.
Harris contends the superior court improperly denied his petition at
the prima facie stage instead of holding an evidentiary hearing. We agree
and reverse.

1 Undesignated statutory references are to the Penal Code.

2 Specifically, the jury found true an allegation that Harris was a
principal in the offense and “in the commission of the offense at least one
principal personally used a firearm; to wit: a handgun, and proximately
caused great bodily injury and death to a person (other than an accomplice),
within the meaning of [ ] section 12022.53[, subdivisions (d) and (e)].”
(Capitalization omitted.)

3 Effective June 30, 2022, the Legislature renumbered section 1170.95 as
section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.)
We refer to the statute throughout as section 1172.6.

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 FACTUAL AND PROCEDURAL BACKGROUND
Harris’s Conviction
We set forth the facts from our opinion in People v. Harris, supra,
D055992, in which we addressed a sufficiency of the evidence challenge and
affirmed the conviction.
At the time of the murder, Harris was a member of the 5/9 Brims
criminal street gang. He had multiple 5/9 Brim tattoos on his body. One of
5/9’s rivals is Skyline Piru.
On August 14, 2004, at 9:19 pm, Lee Smith and Alfred Lacy were
waiting for a bus in an area claimed by the Skyline Piru gang. Edward
Thomas, who was driving a Ford Expedition SUV, stopped at a red light in
front of them. Thomas and a passenger “mad-dogged” Smith and Lacy before
driving off. Several minutes later, the SUV returned. A passenger climbed
through the driver’s window and fired a handgun over the roof of the SUV at
Smith, Lacy, and their friends. A bullet struck Smith, killing him.
Between 9:25 and 9:30 pm, Thomas drove in his SUV to pick up two
girls. When he arrived, the girls saw Robert Myers, Dejon Satterwhite, and
Harris in the SUV. Harris was seated in the front passenger seat. The two
girls got in and sat in the back seat between Satterwhite and Myers. They
saw that Harris, Myers, and Satterwhite were wearing “football like” gloves.
En route to their destination, Harris waved a handgun in Thomas’s
face, joking around. Someone in the SUV noticed a police car following them.
Harris handed the gun to Myers, who put it under his seat after he failed to
convince one of the girls to carry it. As the police car followed the SUV,
Harris said, “We should bust on them,” meaning shoot at the police. He then
said, “We’re going to jail.” Thomas continued to drive.

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 Harris directed Thomas to turn into an apartment complex, and he
complied. When the SUV stopped, Satterwhite jumped out and ran away.
Police arrested Harris.
At a curbside lineup, Lacy identified Thomas as the shooter and Myers
as a passenger in the SUV. He did not identify Harris. Lacy said he did not
see the girls in the SUV at the time of the shooting.
Law enforcement recovered a loaded .22-caliber long rifle from the
SUV’s rear/trunk area and a loaded nine-millimeter handgun from under
Myers’s seat. They also found live ammunition for both weapons, expended
casings, a pair of gloves in the front driver’s area and a second pair on the
floorboards under the middle row seats. DNA testing of the pair of gloves
located in the driver’s area showed Harris was a major contributor to the
DNA found on each glove. Myers, Thomas, and Satterwhite could not be
ruled out as minor contributors to the DNA on the left glove. However,
Myers was excluded as a contributor to the right glove.
Gunshot residue was found on Harris, but not on Thomas or Myers.
Harris’s fingerprints were also recovered from the exterior passenger door
frame and the exterior driver’s window frame, the same window Lacy
described the shooter firing from. Police recorded Harris and Myers’s
conversation in the rear of a police car. Despite acknowledging that he was
likely being recorded, Harris made numerous statements indicating he knew
there were guns in the SUV, and repeatedly commented “to the effect that he
d[id] not know anything and was not there.” (People v. Harris, supra,
D055992.)
In our prior opinion, we pointed out the People had prosecuted Harris
on a variety of theories, including that of natural and probable consequences.
(People v. Harris, supra, D055992.) The court instructed the jury on all of

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those theories: “The prosecution presented multiple theories with respect to
Harris’s liability for Smith’s murder. For example, the prosecutor argued
that Harris could be convicted as a direct perpetrator of, or as someone who
conspired to commit, or aided and abetted the commission of, either (a) the
drive-by shooting or (b) the target crimes of carrying a concealed or loaded
weapon on a person or in a vehicle, assault with a firearm or semiautomatic
firearm, or discharging or permitting the discharge of a firearm from a car,
with murder being a natural and probable consequence of any of these
crimes.” (Ibid.)
On direct appeal, we rejected Harris’s principal contention “that the
evidence is insufficient to support the jury’s implied findings that he was
present in the SUV at the time of the shooting, or, even if he was in the SUV,
that he was a second shooter, or that he aided and abetted the drive-by
shooting or any other offense.” We concluded that although the evidence of
Harris’s participation in Smith’s murder was circumstantial, it was
nevertheless sufficient to support the jury’s verdict. (People v. Harris, supra,
D055992.)
We also concluded we could affirm the verdict under the different
theories presented at trial: “If, as we have determined, one could reasonably
conclude that Harris was present in the SUV at the time of the shooting, then
the evidence is sufficient to support a further finding that he conspired to
commit, or aided and abetted, the drive-by shooting, or, at a minimum, that
he aided and abetted the commission of one of the other firearm-related
target offenses as to which the jury was instructed, and that the natural and
probable consequence of any of those target offenses was a murder.” (People
v. Harris, supra, D055992.) We elected not to address “the theory that Harris
was a second shooter because the evidence is sufficient to support the other

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theories of liability that were presented to the jury. We presume that the
jury based its verdict on one of these grounds.” (People v. Harris, supra,
D055992.)
Harris’s Petition for Resentencing
In 2022, Harris, representing himself, filed a form petition for
resentencing under section 1172.6. By checking boxes, he alleged a complaint
or information was filed against him that allowed the prosecution to proceed
under the theory of felony murder or murder under the natural and probable
consequences doctrine, and at trial, he was convicted of first or second degree
murder pursuant to the felony murder rule or the natural and probable
consequences doctrine. In part, he alleged he “could not now be convicted of
[first] degree felony murder because of changes made to . . . [section] 189 . . .
for the following reasons . . . [¶] . . . I was not the actual killer. [¶] . . . I did
not, with the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in the first
degree. [¶] . . . I was not a major participant in the felony or I did not act
with reckless indifference to human life during the course of the crime or
felony.” The court granted Harris’s request for appointed counsel.
In their response, the People argued Harris had not met his prima facie
burden of showing he came within the provisions of the resentencing statute
because at trial, the court had instructed the jury with CALCRIM No. 521 on
the different degrees of murder under section 189. The People argued: “[T]he
trial court painstakingly differentiat[ed] between ‘murder’ and ‘first degree
murder’ so as to avoid a jury mistaking one for the other. When discussing
murder stemming from the natural and probable consequences doctrine, it
was never described as first degree murder. It was always given the generic
label of ‘murder.’ . . . Contrasted with CALCRIM [No.] 416, the only form of

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murder discussed with uncharged conspiracy and premeditation was
‘Premeditated [first] degree murder,’ and not the generic ‘murder’ label. The
same holds true for CALCRIM [No.] 540B, describing ‘[first] degree murder’
under the alternate theory of discharge from a motor vehicle. [¶] . . . [¶]
This is not a case where the court must determine whether a jury reached
their verdict using a proper theory or one now discredited by section [1172.6].
The jury was not given the option of using natural and probable consequences
or traditional felony murder to find petitioner guilty of first degree murder.
On the contrary, the jury was specifically told it was not possible to reach a
first degree murder verdict under natural and probable consequences.
Having been found guilty of first degree murder, the jury found [Harris] acted
with the intent to kill.” (Some capitalization omitted.) That instruction also
stated the jury was required to find Harris possessed the intent to kill in
order to find him guilty of first degree murder. It further specified the
theories supporting first degree murder, and concluded, “All other murders
are of the second degree.” (Some capitalization omitted.)
The Court’s Ruling
The court stated it had reviewed our prior opinion as well as the
parties’ moving and opposing papers, jury instructions, the verdict form, the
abstract of judgment, and “the [trial] court’s record in the case, which include
the minute order from September 29th, 2009, which was the sentencing; the
minute order from August 3rd, 2009, which was the jury verdict; [and] the
court clerk’s minutes for the trial from August 3rd.”
The court denied Harris’s petition: “Review of the verdict form and the
jury instructions given at trial clearly show that among the multiple theories
of liability for murder used by the people at trial, only two paths were
provided in order for the jury to find [Harris] guilty of first[ ]degree murder:

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deliberation and premeditation, and discharge from a vehicle. Review of the
applicable jury instructions for both show the jury was instructed that the
People were required to prove [Harris] intended to kill at the time of the
crime. The jury did not find [Harris] guilty of second[ ]degree murder, for
which other theories were offered to arrive at guilt. The jury was not given
the option of using natural and probable consequences or traditional felony
murder to find petitioner guilty of first degree murder. [¶] Thus, because the
jury could have only found [Harris] guilty of first[ ]degree murder by finding
that he had the intent to kill, [he] is ineligible for relief.” (Some
capitalization omitted.)
DISCUSSION
Harris contends: “Contrary to the superior court’s reasoning,
CALCRIM No. 521, as given to the jury at trial, did not instruct that the
identified theories of premeditation and deliberation and discharge of a
firearm from a vehicle were the exclusive and only theories under which it
could find Harris guilty of first[ ]degree murder. Rather, the jury was
instructed that ‘the defendant has been prosecuted for first degree murder
under various theories of liability. Two of them are . . .’ premeditation and
deliberation and discharge of a firearm from a vehicle. . . . The jury was also
instructed it did not need to agree on a theory of first[ ]degree murder. . . .
This left room for at least one juror to have concluded Harris’ guilt of
first[ ]degree murder, based on any one of the other ‘various theories’ upon
which the jury was instructed.”
I. Applicable Law
Effective January 1, 2019, Senate Bill No. 1437 significantly limited
the scope of the felony-murder rule and eliminated liability for murder under
the natural and probable consequences doctrine through two key provisions.

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(Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Strong (2022) 13 Cal.5th
698, 707-708 (Strong).) First, Senate Bill No. 1437 amended section 189 so
that “[d]efendants who were neither actual killers nor acted with the intent
to kill can be held liable for murder only if they were ‘major participant[s] in
the underlying felony and acted with reckless indifference to human life[.]’ ”
(Strong, at p. 708, citing § 189, subd. (e)(3).) Second, it amended section 188
to provide that, when the felony-murder rule does not apply, a principal in
the crime of murder can only be convicted if he acted “with malice
aforethought,” and “[m]alice 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 established a new procedure to allow
defendants who could not have been convicted under the new law to petition
the sentencing court to vacate their murder convictions and resentence them
on any remaining counts. (See § 1172.6, subd. (a); Strong, supra, 13 Cal.5th
at p. 708.) After receiving a petition containing the required information,
“the court must evaluate the petition ‘to determine whether the petitioner
has made a prima facie case for relief.’ ” (Strong, at p. 708, citing § 1172.6,
subd. (c).) If the defendant does so, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether relief should be
granted. (§ 1172.6, subds. (c), (d)(3).)
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.)
amended section 1172.6 to clarify certain aspects of the law, including that
(1) the burden of proof at a resentencing hearing under this section is “on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder” under California law as amended by Senate Bill No. 1437 and (2)
“[a] finding that there is substantial evidence to support a conviction for
murder . . . is insufficient to prove, beyond a reasonable doubt, that the

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petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); see also
Stats. 2021, ch. 551, § 1, subd. (c).) Senate Bill No. 775 clarified that the trial
court’s role in a section 1172.6 proceeding is to act as an independent
factfinder and determine, in the first instance, whether the petitioner
committed murder under the law as amended by Senate Bill No. 1437.
(People v. Clements (2022) 75 Cal.App.5th 276, 294, 297; see also People v.
Garrison (2021) 73 Cal.App.5th 735, 745, fn. omitted [the trial court acts as
“an independent factfinder, to determine beyond a reasonable doubt whether
defendant is guilty of murder under a valid theory of murder”].) Under the
amended felony-murder rule, a defendant who was not the actual killer and
did not act with the intent to kill can only be liable for murder if he was a
major participant in the underlying felony and acted with reckless
indifference to human life. (Strong, supra, 13 Cal.5th at p. 708, citing § 189,
subd. (e)(3).)
The trial court in conducting the prima facie inquiry may properly
examine the record of conviction, “allowing the court to distinguish petitions
with potential merit from those that are clearly meritless.” (People v. Lewis,
(2021) 11 Cal.5th 952, 971 (Lewis).) But its inquiry is limited: “ ‘ “[T]he court
takes petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary
hearing.’ ” (Lewis, at p. 971; People v. Harden (2022) 81 Cal.App.5th 45, 51
(Harden).) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Lewis, at p. 972;

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Harden, at p. 51 [“ ‘[T]he trial court should not decide unresolved factual
issues[ ] that involve credibility determinations or weighing of evidence’ ”].)
“Nevertheless, the court may appropriately deny a petition at the prima facie
stage if the petition is ineligible for relief as a matter of law.” (Harden, at p.
52.) “ ‘[I]f the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.” ’ ” (Lewis, at p.
971; Harden, at p. 52.)
An appellate opinion is generally part of the record of conviction, and
may be considered at the prima facie stage, provided that the court does not
engage in factfinding based on the prior opinion. (Lewis, supra, 11 Cal.5th at
p. 972 [“the probative value of an appellate opinion is case-specific, and ‘it is
certainly correct that an appellate opinion might not supply all answers’ ”];
People v. Langi (2022) 73 Cal.App.5th 972, 979 [“[A]lthough an appellate
opinion affirming a conviction may be considered in determining whether a
prima facie showing has been made under section [1172.6], on prima facie
review such an opinion may not be conclusive”].) The record of conviction
may also include admissible trial evidence (People v. Blakely (2014) 225
Cal.App.4th 1042, 1063), the court’s instructions to the jurors (People v.
Bascomb (2020) 55 Cal.App.5th 1077, 1084), and the parties’ closing
arguments (People v. White (2014) 223 Cal.App.4th 512, 525).
A trial court’s decision to deny a resentencing petition at the prima
facie stage “is appropriate only if the record of conviction demonstrates that
‘the petitioner is ineligible for relief as a matter of law.’ [Citations.] This is a
purely legal conclusion, which we review de novo.” (People v. Ervin (2021) 72
Cal.App.5th 90, 101.)

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 Here, the trial court instructed the jury with CALCRIM Nos. 4004 and

4015 on direct aiding and abetting liability. These instructions informed the
jury that to convict Harris as an aider and abettor, the prosecution had to
prove he knew the perpetrator intended to commit a crime, that he intended
to aid and abet the perpetrator in committing the crime, and that he in fact
did aid and abet the perpetrator in committing the crime.
The court instructed the jury with CALCRIM No. 403 on the natural
and probable consequences doctrine in the context of a murder charge. It
instructed that for the jury to find Harris guilty of murder, it “may decide
whether he is guilty of any of the following crimes: carrying a concealed
firearm on the person, carrying a loaded firearm on the person or in a vehicle,
assault with a firearm, assault with a semi-automatic firearm or discharging
or permitting the discharge of a firearm from a motor vehicle. [¶] To prove

4 CALCRIM No. 400 provides: “A person may be guilty of a crime in two
ways. One, he or she may have directly committed the crime. I will call that
person the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. A person is guilty of a crime
whether he or she committed it personally or aided and abetted the
perpetrator who committed it.”

5 CALCRIM No. 401 provides: “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.”

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that the defendant is guilty of murder, the People must prove that: [¶] l. The
defendant is guilty of any of the crimes listed in the first paragraph of this
instruction; [¶] 2. During the commission of murder a coparticipant in any of
the crimes listed above committed the crime of murder; [¶] 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 any of the crimes listed in the first
paragraph. [¶] A coparticipant in a crime is the perpetrator or anyone who
aided and abetted the perpetrator. It does not include a victim or innocent
bystander. [¶] A natural and probable consequence is one that a reasonable
person would know is likely to happen if 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 any of the crimes listed
in the first paragraph, then the commission of murder was not a natural and
probable consequence of any of the crimes listed in the first paragraph. [¶]
To decide whether crime of murder was committed, please refer to the
separate instructions that I will give you on those crimes. [¶] The People are
also alleging that the defendant originally intended to aid and abet any of the
crimes listed in the first paragraph. [¶] The defendant is guilty of murder if
you decide that the defendant aided and abetted one of the crimes listed in
the first paragraph of this instruction and that murder was the natural and
probable result of one of these crimes. However, you do not need to agree
about which of the crimes listed in the first paragraph the defendant aided
and abetted.” (Some capitalization omitted; some italics added.)
The court instructed the jury with CALCRIM No. 417 on “liability for
coconspirators’ acts,” which also mentions the theory of natural and probable

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consequences: “A member of a conspiracy is criminally responsible for the
crimes that he or she conspires to commit, no matter which member of the
conspiracy commits the crime. [¶] A member of a conspiracy is also
criminally responsible for any act of any member of the conspiracy if that act
is done to further the conspiracy and that act is a natural and probable
consequence of the common plan or design of the conspiracy. This rule
applies even if the act was not intended as part of the original plan. Under
this rule, a defendant who is a member of the conspiracy does not need to be
present at the time of the act. [¶] A natural and probable consequence is one
that a reasonable person would know is likely to happen if nothing unusual
intervenes. In deciding whether a consequence is natural and probable,
consider all of the circumstances established by the evidence. [¶] A member
of a conspiracy is not criminally responsible for the act of another member if
that act does not further the common plan or is not a natural and probable
consequence of the common plan. [¶] To prove that the defendant is guilty of
the crime charged . . . , the People must prove that: [¶] l. The defendant
conspired to commit one of the following crimes[:] carrying a concealed
firearm on the person, carrying a loaded firearm, assault with a firearm,
assault with a semi-automatic firearm or discharging or permitting the
discharge of a firearm from a motor vehicle, [¶] 2. A member of the conspiracy
committed murder to further the conspiracy; [¶] AND [¶] Murder was a
natural and probable consequence of the common plan or design of the crime
that the defendant conspired to commit. [¶] The defendant is not responsible
for the acts of another person who was not a member of the conspiracy even if
the acts of the other person helped accomplish the goal of the conspiracy.”
(Some capitalization omitted and italics added.)

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 The court also instructed the jury with CALCRIM No. 521 regarding

the degrees of murder and two specific theories of first degree murder.6

6 CALCRIM No. 521 provides: “If you decide that the defendant has
committed murder, you must decide whether it is murder of the first or
second degree. [¶] The defendant has been prosecuted for first degree
murder under various theories of [ ] liability. Two of them are as follows: (1)
the murder was willful, deliberate and premeditated and (2) the murder was
committed by the discharge of a firearm from a vehicle. [¶] Each theory of
first degree murder has different requirements, and I will instruct you as to
both. [¶] You may not find the defendant guilty of first degree murder
unless all of you agree that the People have proved that the defendant
committed murder. [¶] Deliberation and Premeditation [¶] The defendant
is guilty of first degree murder if the People have proved that he acted
willfully, deliberately, and with premeditation. The defendant acted willfully
if he intended to kill. The defendant acted deliberately if he carefully
weighed the considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with premeditation if he
decided to kill before committing the act that caused death. [¶] The length of
time the person spends considering whether to kill does not alone determine
whether the killing is deliberate and premeditated. The amount of time
required for deliberation and premeditation may vary from person to person
and according to the circumstances. A decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and
premeditated. [¶] On the other hand, a cold, calculated decision to kill can
be reached quickly. The test is the extent of the reflection, not the length of
time. [¶] Discharge From Vehicle [¶] The defendant is guilty of first degree
murder if the People have proved that the defendant or another perpetrator
murdered by shooting a firearm from a motor vehicle. The defendant
committed this kind of murder if: [¶] 1. He or another perpetrator shot a
firearm from a motor vehicle; [¶] 2. He or another perpetrator intentionally
shot at a person who was outside the vehicle; [¶] AND [¶] 3. He intended to
kill that person. [¶] . . . [¶] . . . All other murders are of the second degree.”
(Some capitalization omitted.)

15
It further instructed the jury regarding the intent requirement for first
degree murder under the theories of discharging a firearm from a motor

vehicle and felony murder.7

7 CALCRIM No. 540b is titled “Felony Murder: First Degree—
Coparticipant Allegedly Committed Fatal Act.” It provides: “The defendant
is charged in count one with murder. One of the theories of criminal liability
the prosecution has elected is a theory of felony murder. [¶] The defendant
may also be guilty of murder, under a theory of felony murder, even if
another person did the act that resulted in the death. I will call the other
person the perpetrator. [¶] To prove that the defendant is guilty of first
degree murder under this theory, the People must prove that: [¶] 1. The
defendant committed or attempted to commit or aided and abetted or was a
member of a conspiracy to commit the crime of discharging a firearm from a
motor vehicle intentionally at another person outside the vehicle with the
intent to inflict death. [¶] 2. The defendant intended to commit or intended
to aid and abet the perpetrator in committing, or intended that one or more of
the members of the conspiracy commit the crime of discharging a firearm
from a motor vehicle intentionally at another person outside the vehicle with
the intent to inflict death. [¶] 3. If the defendant did not personally commit
or attempt to commit the crime of discharging a firearm from a motor vehicle
intentionally at another person outside the vehicle with the intent to inflict
death, then a perpetrator, whom the defendant was aiding and abetting or
with whom the defendant conspired, personally committed the crime of
discharging a firearm from a motor vehicle intentionally at another person
outside the vehicle with the intent to inflict death. [¶] 4. While committing or
attempting to commit the crime of discharging a firearm from a motor vehicle
intentionally at another person outside the vehicle with the intent to inflict
death, the perpetrator did an act that caused the death of another person. [¶]
To decide whether the defendant and the perpetrator committed or attempted
to commit discharging a firearm from a motor vehicle, please refer to the
separate instructions that I have given you on that crime. To decide whether
the defendant aided and abetted a crime, please refer to the separate
instructions that I have given you on aiding and abetting. To decide whether
the defendant was a member of a conspiracy to commit a crime, please refer
to the separate instructions that I have given you on conspiracy. You must
apply those instructions when you decide whether the People have proved
first degree murder under a theory of felony murder. [¶]
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 II. Analysis
As stated, Harris averred in his section 1172.6 petition that he was
convicted of first degree murder under the felony murder rule or the natural
and probable consequences doctrine. At the prima facie stage, the trial court
was required to accept that asserted fact as true. (Lewis, supra, 11 Cal.5th at
p. 971 [analogizing to the inquiry in writ of habeas corpus proceedings, “ ‘the
court takes petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to
show cause’ ”].) Further, the record of conviction supports Harris’s
averments. The trial court’s jury instructions referred several times to the
natural and probable consequences theory. Additionally, the prosecution
argued the natural and probable consequences theory to the jury as one of
multiple theories in order to prove Harris’s guilt for the crime of murder.
This case does not present a clear basis for resolution at the prima facie stage
as did another case in which this court stated, “[I]f the record shows that the
jury was not instructed on either the natural and probable consequences or
felony-murder doctrines, then the petitioner is ineligible for relief as a matter

To prove the defendant guilty of the crime of [first] degree murder under a
theory of felony murder, the People must prove that: [¶] 1. The defendant or
another perpetrator shot a firearm from a motor vehicle, killing Lee Smith [¶]
2. The defendant or another perpetrator intentionally shot at a person who
was outside the vehicle; [¶] AND [¶] 3. At the time of the shooting, the
defendant intended to kill. [¶] The defendant must have intended to commit
or aid and abet or been a member of a conspiracy to commit the felony of
discharging a firearm from a motor vehicle intentionally at another person
outside the vehicle with the intent to inflict death before or at the time of the
act causing the death. It is not required that the person killed be the
victim/intended victim of the felony.” (Some capitalization omitted.)

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of law.” (Harden, supra, 81 Cal.App.5th at p. 52.) On this record, the trial
court erred by summarily denying Harris’s section 1172.6 writ petition at the
prima facie stage. Instead, it should have issued an order to show cause and
conducted a hearing as provided in section 1172.6.
The People concede the trial court instructed the jury on different
theories of culpability, including the doctrine of natural and probable
consequences: “The trial court instructed the jury on murder generally and
the natural and probable consequences [sic] pursuant to CALCRIM No. 520
(murder committed with malice aforethought), CALCRIM No. 403 (natural
and probable consequences) and CALCRIM No. 417 (liability for co-
conspirator’s acts).” They nonetheless argue: “The trial court properly
denied [Harris’s] petition. The jury instructions given made clear that there
was a difference between first and second degree murder and that, regardless
of the alternative theories the jury could rely upon in order to find [Harris]
guilty of murder, it had to unanimously find that [he] had the intent to kill in
order to find him guilty of first degree murder. That finding rendered
[Harris] ineligible for relief as a matter of law.”
It is possible the jurors did not rely on the natural and probable
consequences doctrine and convicted Harris as a direct perpetrator or direct
aider and abettor. However, the record before the superior court does not
conclusively establish that. (See People v. Pacheco (2022) 76 Cal.App.5th 118,
126-127, review granted May 18, 2022, S274102 [superior court erred in
summarily denying a petition under section 1172.6 because the trial court
instructed the jury on the natural and probable consequences theory and the
prosecution argued the natural and probable consequences theory to the jury
“as one of multiple theories in order to prove [the defendant’s] guilt for the
crime of murder”]; People v. Offley (2020) 48 Cal.App.5th 588, 599 [reviewing

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court could not “rule out the possibility that the jury relied on the natural
and probable consequences doctrine in convicting” the defendant, where the
trial court instructed the jury on the natural and probable consequences
theory and the prosecutor argued “the jury could convict [the defendant] on
the basis of this instruction”].)
In light of the uncertain basis of the jury’s verdict, and given the court’s
jury instructions and the prosecutor’s arguments, the superior court could
have referred to counsels’ arguments to clarify whether the jury necessarily
found intent to kill without relying on the natural and probable consequences
theory. “If a jury instruction is ambiguous, we inquire whether there is a
reasonable likelihood that the jury misunderstood and misapplied the
instruction.” (People v. Smithey (1999) 20 Cal.4th 936, 963.) We “ ‘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’
[citation] and the jurors are ‘presumed to have followed the court’s
instructions.’ ” (People v. Williams (2022) 86 Cal.App.5th 1244, 1255-1256.)
In particular, we “must consider the arguments of counsel in assessing the
probable impact of the instruction on the jury.” (People v. Young (2005) 34
Cal.4th 1149, 1202.)
Our prior opinion specifically states the prosecutor argued to the jury
multiple theories with respect to Harris’s culpability for Smith’s murder.
However, the parties did not submit copies of counsels’ closing arguments for
the superior court’s review, and in the proceedings below, neither the court
nor the parties referred to them. On appeal, the parties also fail to reference
counsels’ closing arguments. On this record, we cannot overcome the
presumption of truth given to the petitioner’s allegations at the prima facie

19
stage. (See People v. Montes (2021) 71 Cal.App.5th 1001, 1007 [court erred in
summarily denying a petition under section 1172.6 in part because “the
prosecutor referred to the natural and probable consequences doctrine,
provided the jury with examples of what natural and probable consequences
could arise . . . , and argued that a reasonable person in [the defendant’s]
shoes would know that an assault may lead to an attempted murder”]; cf.
People v. Estrada (2022) 77 Cal.App.5th 941, 948 [“ ‘when the parties make
“no reference to the ‘natural and probable consequences’ doctrine in their
arguments to the jury, it is highly unlikely that the jury [will have] relied
upon that rule” ’ ”].) We conclude the court erred in denying Harris’s petition
for relief at the prima facie stage.

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 DISPOSITION
The order denying Harris’s section 1172.6 petition for resentencing is
reversed. The superior court is directed to issue an order to show cause and
conduct further proceedings under section 1172.6.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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