Filed 3/28/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A166001
v. (Alameda County
NICHOLAS BEAUDREAUX, Super. Ct. No. 160022B)
Defendant and Appellant.
Nicholas Beaudreaux, who is now serving an aggregate sentence of 50
years to life for the first degree murder and attempted robbery of Wayne
Drummond, has twice unsuccessfully petitioned for resentencing under Penal
Code1 section 1172.6. In the resentencing proceedings on his second petition,
the trial court ruled that the order denying relief on his first petition, an
order we affirmed in 2020, forecloses relief.
Beaudreaux appeals again, this time relying on our Supreme Court’s
decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the
1 Undesignated statutory references are to the Penal Code. Originally
numbered section 1170.95 when enacted in 2018 as Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (Senate Bill 1437), the
statute was renumbered to section 1172.6 effective June 30, 2022 (Stats.
2022, ch. 58, § 10). Because this statutory change does not affect our
consideration of the issues raised in this appeal, we refer to the statute as
section 1172.6 throughout the rest of this opinion even though it was
referenced in the proceedings below by its former enumeration.
1
applicable procedural law governing section 1172.6 resentencing proceedings
in some notable ways. He also relies on Senate Bill No. 775 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), which was enacted in late 2021,
codifying and in some respects clarifying Lewis.
We will again affirm. We agree with Beaudreaux that, in light of Lewis
and Senate Bill 775, the trial court erred at the prima facie stage of these
resentencing proceedings by once again failing to appoint counsel, and by
relying on substantive facts summarized in this court’s 2011 opinion
affirming his conviction. But those errors were harmless.
The dispositive question here is this. Based on the record of conviction
before us—which consists of the jury instructions in Beaudreaux’s 2009 trial,
the jury’s verdicts, and the findings accompanying the verdicts—must we
conclude that Beaudreaux was convicted as Drummond’s actual killer? We
think so. The record here is limited, but it is sufficient to refute conclusively
Beaudreaux’s attempt to allege entitlement to section 1172.6 relief.
I. BACKGROUND
The pertinent record of conviction consists of a clerk’s transcript, the
trial court minutes, and the jury instructions and verdicts from the
underlying proceedings against Beaudreaux in 2009.2 Supplementing that,
we grant Beaudreaux’s request for judicial notice under Evidence Code
sections 452 and 459 of (1) our 2011 appellate opinion affirming his
conviction in the underlying case (People v. Beaudreaux (Jul. 21, 2011,
2 The appellate record in this case also contains (1) the 2020 appellate
court opinion, which, as further explained below, we may consider for
procedural history only, and (2) a probation department report, which we
cannot consider because, “[o]rdinarily, a probation officer’s report is not a
part of the record of conviction.” (People v. Del Rio (2023) 94 Cal.App.5th 47,
56, following People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; accord,
People v. Soto (2018) 23 Cal.App.5th 813, 816, fn. 2.)
2
A126140) [nonpub. opn.] (Beaudreaux I)), and (2) the clerk’s transcript filed
in the appeal from the trial court’s denial of his previous resentencing
petition (People v. Beaudreaux (Aug. 31, 2020, A159751) [nonpub. opn.]
(Beaudreaux II).) From this limited record, we glean the following procedural
facts.
A. Beaudreaux’s 2009 Trial and Convictions
In December 2008, Beaudreaux and a codefendant, Brandon Crowder,
were charged in an information filed by the Alameda County District
Attorney with the same two counts: (1) murdering Drummond in violation of
section 187, subdivision (a), and (2) attempting to rob Drummond in violation
of section 211, both crimes occurring on or about September 4, 2006.
Each count included the same two sentencing enhancement allegations:
against Crowder, under section 12022, subdivision (a)(1), that during the
commission of the crime “a principal” was armed with a firearm; and against
Beaudreaux, under sections 12022.5, 12022.7, and 12022.53, that he
personally and intentionally discharged a firearm and caused great bodily
injury and death to Drummond. But only Beaudreaux was charged with
personally and intentionally discharging a firearm, causing great bodily
injury and death to Drummond.
A jury trial followed. In the parlance of criminal trial practice, Crowder
“flipped” just as trial began. On the second day of the proceedings, the trial
court accepted Crowder’s change of plea on the murder count from not guilty
to no contest to the lesser included offense of voluntary manslaughter under
section 192, subdivision (a). The court dismissed the remainder of the
charges against him and proceeded against Beaudreaux alone, with Crowder
among the witnesses testifying on behalf of the prosecution.
The jury was instructed in relevant part on malice murder, felony
murder, and attempted robbery, including the instruction that “[t]he
3
defendant has been prosecuted for first degree murder under two theories:
(1) The murder was willful, deliberate and premeditated; and (2) Felony
murder.” The instruction on malice murder stated: “The defendant is
charged in Count 1 with murder in violation of Penal Code [section] 187. [¶]
To prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant committed an act that caused the death of another
person. [¶] AND [¶] 2. When the defendant acted, he had a state of mind
called malice aforethought.” (Italics added.)
The felony-murder instruction stated: “The defendant is charged in
Count 1 with murder, under a theory of felony murder. [¶] To prove that the
defendant is guilty of first degree murder under this theory, the People must
prove that: [¶] 1. The defendant committed attempted robbery; [¶] 2. The
defendant intended to commit attempted robbery; [¶] AND [¶] 3. While
committing attempted robbery, the defendant did an act that caused the
death of another person. [¶] A person may be guilty of felony murder even if
the killing was unintentional, accidental, or negligent.” (Italics added.)
The jury was also instructed that, if it found Beaudreaux guilty of the
crimes charged against him, it was to consider the firearm use allegations in
accordance with the following guidance: “To prove that the defendant
intentionally discharged a firearm, the People must prove that: [¶] 1. The
defendant personally discharged a firearm during the commission of that
crime; [¶] AND [¶] 2. The defendant intended to discharge the firearm. [¶] If
the People have proved both 1 and 2, you must then decide whether the
People also have proved that the defendant’s act caused the death of a
person.” (Italics added.)
There was a jury instruction addressing Crowder’s testimony, which
stated as follows: “Before you may consider the testimony of Brandon
4
Crowder as evidence against the defendant regarding the crimes of murder
and attempted robbery, you must decide whether Brandon Crowder was an
accomplice to those crimes. A person is an accomplice if he or she is subject
to prosecution for the identical crime charged against the defendant.
Someone is subject to prosecution if he or she personally committed the crime
or if: [¶] 1. He or she knew of the criminal purpose of the person who
committed the crime; [¶] AND [¶] 2. He or she intended to, and did in fact,
aid, facilitate, promote, encourage, or instigate the commission of the crime.”
The instruction further stated that if the jury decides a witness is an
accomplice, it could not convict based on his or her testimony alone and
should view with caution any incriminating testimony by the accomplice.
In July 2009, the jury found Beaudreaux guilty of the first degree
murder and attempted robbery of Drummond, and found the sentencing
enhancement allegations against him to be true. The jury did not indicate
whether it based its first degree murder verdict on a theory of malice murder
or felony murder. But it did specifically find that he “personally and
intentionally discharge[d] a firearm and caused great bodily injury and death
to WAYNE DRUMMOND.”
The trial court sentenced Beaudreaux to a total state prison term of 50
years to life, consisting of 25 years to life for first degree murder and 25 years
to life under section 12022.53, subdivision (d).3 On appeal, this court
affirmed in Beaudreaux I. Our opinion there includes a lengthy summary of
the facts on which the conviction is based.
3 The court stayed its sentences for Beaudreaux’s attempted robbery
conviction and the special allegation that accompanied that count.
5
B. Beaudreaux’s First and Second Resentencing Petitions
After Senate Bill 1437 went into effect on January 1, 2019 (People v.
Strong (2022) 13 Cal.5th 698, 708 (Strong)), Beaudreaux, representing
himself, filed a petition for resentencing and checked a box requesting
appointment of counsel. Without appointing counsel or seeking further
briefing, and based on the facts of the crime as recounted in Beaudreaux I,
the trial court denied his petition for failure to set forth a prima facie case for
relief. This court affirmed that denial by unpublished opinion in
Beaudreaux II.
Eighteen months later, Beaudreaux, still representing himself, again
petitioned for resentencing under section 1172.6. He contended under
penalty of perjury that he could not have been found guilty of murder under
present law and requested, based on Lewis, that the court appoint counsel for
him based on his facially sufficient petition. The trial court denied
Beaudreaux’s second petition in a written order without seeking any response
from the People, and also denied Beaudreaux’s request for counsel. The court
explained as follows:
“The instant petition appears to be similar to defendant’s prior petition.
Notwithstanding defendant’s actual reliance on Lewis, supra, 11 Cal.5th 952
and apparent reliance on Senate Bill 775 . . . , neither authority appears to
contemplate, let alone permit, giving defendants such as Beaudreaux a
second or subsequent opportunity to litigate a claim that was decided against
them and that decision is final. Put another way, Beaudreaux does not
appear to be entitled to a second bite of the apple. [¶] For all these reasons,
the [section 1172.6] petition filed on 14 March 2022 is DENIED.”
Beaudreaux timely appealed.
6
II. DISCUSSION
A. The Senate Bill 1437 Resentencing Scheme
Senate Bill 1437 amended “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(f).)
Among the amendments enacted by Senate Bill 1437 was the addition
of section 188, subdivision (a)(3), providing that principals must act with
express or implied malice in order to be convicted of murder, with the
exception of the felony-murder rule as stated in an amended section 189.
(Stats. 2018, ch. 1015, § 2.) In addition, section 189, subdivision (e), as
amended, states that in order to be convicted of felony murder, a defendant
must be the actual killer; a person who, with the intent to kill, aided or
abetted the actual killer in the commission of the murder in the first degree;
or a major participant in the underlying felony who acted with reckless
indifference to human life. (Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also created a procedure for defendants already
convicted of murder under the former law to obtain retroactive resentencing
in the trial court. That procedure permits these defendants to petition for
resentencing if they could not currently be convicted under the newly
amended sections 188 and 189. It calls for a series of adjudication steps,
starting with a determination of prima facie sufficiency under section 1172.6,
subdivision (c); followed, where necessary, by an evidentiary hearing under
section 1172.6 subdivision (d); and finally, where the petitioner prevails at
the evidentiary hearing, by redesignation of the conviction at issue under
section 1172.6, subdivision (e). (Stats. 2018, ch. 1015, § 4.)
7
In People v. Duchine (2021) 60 Cal.App.5th 798 (Duchine), the panel
explained the prima facie determination stage of this process as follows:
“[T]he time for weighing and balancing and making findings on the ultimate
issues arises at the evidentiary hearing stage rather than the prima facie
stage, at least where the record is not dispositive on the factual issues. Thus,
absent a record of conviction that conclusively establishes that the petitioner
engaged in the requisite acts and had the requisite intent, the trial court
should not question his evidence. The court may . . . consider the record of
conviction at the prima facie stage, but may not evaluate the evidence, make
credibility findings adverse to the petitioner, engage in factfinding or exercise
discretion. [Citation.] The record should be consulted at the prima facie
stage only to determine ‘readily ascertainable facts,’ such as the crime of
conviction and findings on enhancements.” (Id. at p. 815.)
B. Refinement of the Section 1172.6 Procedural Framework
Beaudreaux’s first resentencing petition was denied by the trial court
in January 2020, and we affirmed the denial order in Beaudreaux II. In
affirming, we rejected contentions from Beaudreaux that, at the prima facie
stage of the proceedings, the trial court erred by relying on facts stated in
Beaudreaux I and by failing to hold a hearing before summarily denying
relief. The California Supreme Court granted Beaudreaux’s petition for
review, and ordered the appeal held in abeyance pending decision in Lewis.
In July 2021, the Supreme Court issued its opinion in Lewis, and in
December 2021, it dismissed Beaudreaux’s petition for review without
disturbing our opinion in Beaudreaux II. Undaunted, Beaudreaux filed
another resentencing petition. The present appeal is from the summary
denial of that second petition.
Beaudreaux is correct that, at least potentially, changes in the
applicable law since the denial of his first resentencing petition could have
8
some bearing on this appeal. Lewis focused specifically on the prima facie
stage of the section 1172.6 process. Prior to Lewis, one line of authority in
the courts of appeal parsed out this initial stage of section 1172.6 proceedings
into two separate steps and held that the prima facie sufficiency of a
resentencing petition may be determined without appointing counsel, even
where a petitioner requests representation. (Lewis, supra, 11 Cal.5th at
pp. 961–962.) Resolving a split among the courts of appeal on this point, the
Lewis court held that petitioners are entitled to the appointment of counsel
upon the filing of a facially sufficient section 1172.6 resentencing petition,
and also that “only after the appointment of counsel and the opportunity for
briefing” may the prima facie determination be made. (Lewis, at p. 957,
original italics.)
Lewis further held, consistent with the consensus view among the
courts of appeal at the time, exemplified by Duchine, that “[t]he record of
conviction will necessarily inform the trial court’s prima facie inquiry under
[section 1172.6], allowing the court to distinguish petitions with potential
merit from those that are clearly meritless. This is consistent with the
statute’s overall purpose: to ensure that murder culpability is commensurate
with a person’s actions, while also ensuring that clearly meritless petitions
can be efficiently addressed as part of a single-step prima facie review
process.” (Lewis, supra, 11 Cal.5th at p. 971.) Expounding on this point, the
Lewis court addressed how to deal with facts stated in prior court of appeal
opinions. It stated that “[a]ppellate opinions . . . are generally considered to
be part of the record of conviction,” but that “the probative value of an
appellate opinion is case specific, and ‘it is certainly correct that an appellate
opinion might not supply all answers.’ ” (Id. at p. 972.)
9
Shortly after Lewis was decided, the Legislature passed, and the
Governor signed, Senate Bill 775. Among Senate Bill 775’s many revisions to
section 1172.6 are two that are especially pertinent here. First, Senate
Bill 775 codifies the Lewis holding that, when a petitioner files a facially
sufficient resentencing petition, counsel must be appointed upon request and
briefing must be allowed before the petition may be dismissed at the prima
facie stage of the proceedings. (Stats. 2021, ch. 551, §§ 1, 2.) Second,
section 775 provides that, at the section 1172.6, subdivision (d)(3) evidentiary
hearing to determine a petitioner’s entitlement to relief, “[t]he court may . . .
consider the procedural history of the case recited in any prior appellate
opinion.” (Stats. 2021, ch. 551, § 2.)
By referring only to the “procedural history” stated in appellate
opinions, Senate Bill 775 went a step further than Lewis did. A number of
courts of appeal have held—and we agree—that “by allowing consideration of
‘ “the procedural history” ’ in a prior appellate opinion, the Legislature
intended to prohibit consideration of ‘the factual summar[y]’ ” in an appellate
opinion. (People v. Bratton (2023) 95 Cal.App.5th 1100, 1113, original italics.)
This constraint applies both at the prima facie determination stage under
section 1172.6, subdivision (c), and the evidentiary hearing stage under
section 1172.6, subdivision (d). (People v. Flores (2022) 76 Cal.App.5th 974,
988 [if facts stated in appellate opinions “may not be considered at an
evidentiary hearing to determine a petitioner’s ultimate eligibility for
resentencing, we fail to see how such evidence could establish, as a matter of
law, a petitioner’s ineligibility for resentencing at the prima facie stage”].)
C. Contentions of the Parties
Arguing for reversal in this case, Beaudreaux asserts three errors.
First, relying on People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan), he
argues the trial court erroneously treated his resentencing petition as a
10
procedurally barred “successive petition.” Second, relying on Lewis and
Senate Bill 775, he claims the trial court erred by ignoring his request for
appointment of counsel and not allowing him to present briefing before
entering an order of summary dismissal at the prima facie stage of the
proceeding. Third, relying on Senate Bill 775, which prohibits the use of
appellate factual recitals unless used for procedural background, he claims
the trial court erroneously relied on substantive facts recited in
Beaudreaux I.
Taking a slightly different tack to the prima facie insufficiency of
Beaudreaux’s resentencing petition than the trial court did, the People
advance three contentions of their own. First, under the doctrine of issue
preclusion, they claim Beaudreaux is bound by the 2009 jury findings that he
personally used a firearm and inflicted great bodily harm, causing
Drummond’s death. Second, under the doctrine of law of the case, they claim
Beaudreaux is bound by our 2020 affirmance of his first resentencing petition
in Beaudreaux II. Third, whether or not Beaudreaux is procedurally barred,
they claim any procedural error here was harmless because the record of
conviction conclusively demonstrates he was Drummond’s actual killer.
In evaluating these competing contentions, our standard of review is de
novo. We independently review the denial of a resentencing petition at the
prima facie stage, whether the denial is based on the issue preclusion
doctrine (Cheveldave v. Tri Palms Unified Owners Assn. (2018)
27 Cal.App.5th 1202, 1218–1219), the law of the case doctrine (Leider v.
Lewis (2017) 2 Cal.5th 1121, 1125, 1127), or, more generally, failure by the
petitioner to make a prima facie showing under section 1172.6 (People v.
Harden (2022) 81 Cal.App.5th 45, 52).
11
D. Analysis
We need not address the People’s law of the case argument because we
conclude their issue preclusion argument is correct, which fully resolves the
appeal on harmless error grounds. We “ ‘review the [trial court’s] ruling, not
the court’s reasoning, and, if the ruling was correct on any ground, we
affirm.’ ” (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) Here, while
we agree with Beaudreaux that the trial court erred by failing to appoint
counsel and by relying on substantive facts stated in Beaudreaux I, these
procedural errors are statutory only, and thus, are governed by the usual
harmless error for non-constitutional error. (Lewis, supra, 11 Cal.5th at
pp. 972–974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
Applying the Watson harmless error standard, we ask whether it is
reasonably probable that Beaudreaux’s petition would have survived
summary dismissal if these procedural errors had not occurred. We think
not. Beaudreaux is bound under the doctrine of issue preclusion by the jury
findings that he personally and intentionally fired a weapon in the course of
an attempted robbery that caused the death of Drummond. As we read those
findings, the jury necessarily found Beaudreaux to be the actual killer. And
because the record of conviction irrefutably defeats his allegation that he
could not have been convicted of murder under current law, the court’s
procedural errors in failing to appoint counsel and relying on substantive
facts recited in Beaudreaux I are harmless.
1. Issue Preclusion
“ ‘In general, whether a prior finding will be given conclusive effect in a
later proceeding is governed by the doctrine of issue preclusion, also known
as collateral estoppel.’ [Citation.] ‘The doctrine of collateral estoppel, or
issue preclusion, is firmly embedded in both federal and California common
law. It is grounded on the premise that “once an issue has been resolved in a
12
prior proceeding, there is no further factfinding function to be performed.”
[Citation.] “Collateral estoppel . . . has the dual purpose of protecting
litigants from the burden of relitigating an identical issue with the same
party or his privy and of promoting judicial economy by preventing needless
litigation.” ’ ” (People v. Curiel (2023) 15 Cal.5th 433, 451 (Curiel).)
“ ‘As traditionally understood and applied, issue preclusion bars
relitigation of issues earlier decided “only if several threshold requirements
are fulfilled. First, the issue sought to be precluded from relitigation must be
identical to that decided in a former proceeding.” ’ ” (Curiel, supra,
15 Cal.5th at p. 451.) The identical issue requirement “addresses whether
‘identical factual allegations’ are at stake in the two proceedings.” (Lucido v.
Superior Court (1990) 51 Cal.3d 335, 342, italics added.) “ ‘[I]n determining
whether the identity [of issues] requirement is satisfied, courts must be
mindful of the need to distinguish “issues” from “legal theories.” ’ ” (Ayala v.
Dawson (2017) 13 Cal.App.5th 1319, 1327.)4
“ ‘ “Second, this issue must have been actually litigated in the former
proceeding. Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the former proceeding must be final and
4 Issue preclusion is one branch of the broader set of preclusionary
rules known as res judicata. (See DKN Holdings LLC v. Faerber (2015)
61 Cal.4th 813, 823–824.) “Although the doctrine [of res judicata] has ancient
roots [citation], its contours and associated terminology have evolved over
time. We now refer to ‘claim preclusion’ rather than ‘res judicata’ [citation],
and use ‘issue preclusion’ in place of ‘direct or collateral estoppel.’ ” (Samara
v. Matar (2018) 5 Cal.5th 322, 326.) Both claim preclusion and issue
preclusion must be distinguished from the related doctrine of law of the case
preclusion, which has to do with the legal principles governing a particular
case in subsequent proceedings following an appeal. (See People v. Stanley
(1995) 10 Cal.4th 764, 786; 9 Witkin, Cal. Procedure (6th ed. 2023) Appeal,
§ 480.)
13
on the merits. Finally, the party against whom preclusion is sought must be
the same as, or in privity with, the party to the former proceeding.” ’
[Citation.] ‘The party asserting collateral estoppel bears the burden of
establishing these requirements.’ ” (Curiel, supra, 15 Cal.5th at pp. 451–452;
see Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) And “ ‘[i]n
considering whether these [five] criteria have been met, courts look carefully
at the entire record from the prior proceeding, including the pleadings, the
evidence, the jury instructions, and any special jury findings or verdicts.’ ”
(Curiel, at p. 452.)
Beaudreaux makes no real effort to convince us that some or all of the
threshold requirements for application of issue preclusion are missing here.
That seems understandable. The evidentiary record of the trial is not before
us, but we have the legal framework that governed the trial in the form of the
jury instructions and the adjudicated results of the trial in the form of the
jury’s verdicts and findings. Having considered the defense Beaudreaux
offered, weighed the evidence, and applied the trial court’s instructions, the
jury found that he “personally and intentionally discharge[d] a firearm and
caused great bodily injury and death to WAYNE DRUMMOND.”
As the Supreme Court has now twice pointed out, “a relevant jury
finding is generally preclusive in section 1172.6 proceedings, i.e., it ‘ordinarily
establish[es] a defendant’s ineligibility for resentencing under Senate
Bill 1437 and thus preclude[s] the defendant from making a prima facie case
for relief.’ ” (Curiel, supra, 15 Cal.5th at pp. 453–454; quoting People v.
Strong, supra, 13 Cal.5th at p. 710.) “[I]t is difficult to foresee a situation in
which a relevant jury finding, embodied in a final criminal judgment, would
not meet the traditional elements of issue preclusion” in this setting. (Curiel,
at p. 454.)
14
When we compare the underlying prosecution of Beaudreaux to the
section 1172.6 proceedings, we see that the parties are the same, and the
contested factual issues actually and necessarily decided within each
proceeding are identical. Beaudreaux’s denial of responsibility for
Drummond’s death put in issue his role in Drummond’s killing, and he had
the incentive and opportunity at trial to claim that he did not personally
shoot Drummond. (See Curiel, supra, 15 Cal.5th at pp. 452–453, 459 [“Curiel
contends his intent to kill was not actually litigated because his counsel did
not specifically address the [finding later claimed to be binding]. But this
element of issue preclusion requires only ‘ “the opportunity to litigate . . . not
whether the litigant availed himself or herself of the opportunity.” ’ ”].) We
therefore conclude all the threshold requirements for application of issue
preclusion have been met here.
2. The Equitable Exception for Intervening Changes in the Law
Rather than contest the applicability of issue preclusion as a threshold
matter, Beaudreaux claims he is entitled to invoke the “ ‘well-settled
equitable exception’ ” to issue preclusion for circumstances where there has
been some significant change in the law since the factual findings claimed to
be binding were made. (Curiel, supra, 15 Cal.5th at p. 454, quoting Strong,
supra, 13 Cal. 5th at p. 716.)
For this proposition, Beaudreaux relies on Farfan, supra,
71 Cal.App.5th 942. In that case, the trial court summarily denied a first
section 1172.6 resentencing petition without appointing counsel on the
ground that “the jury’s true finding on [a robbery murder] special
circumstance allegation preclude[d] relief under section [1172.6] as a matter
of law.” (Farfan, at p. 946.) After the denial was affirmed on appeal, the
Supreme Court decided Lewis and a split in authority among the Courts of
Appeal developed, with some courts holding that prior special circumstances
15
findings are not binding at the prima facie stage of a resentencing
proceeding. (Id. at p. 949.) Despite these interim developments in the law,
the trial court summarily denied a second section 1172.6 petition, as in this
case, without appointing counsel. (Farfan, at p. 947.)
On appeal, the People unsuccessfully attempted to defend the second
summary denial by analogy to the rule against successive habeas corpus
petitions. The Farfan court rejected the analogy, citing In re Martinez (2017)
3 Cal.5th 1216), a case in which the Supreme Court declined to apply the rule
against successive habeas corpus petitions where there has been an interim
retroactive change in the governing law. (Farfan, supra, 71 Cal.App.5th at
p. 951.) According to the Farfan court, “not only are the changes to the law
effected by Senate Bill No. 1437 themselves retroactive, but judicial
interpretations of [section 1172.6] may afford a petitioner grounds for
claiming eligibility for relief under the statute that were not previously
available under other judicial interpretations. Here, because [appellant
Farfan’s] 2020 petition was based on new authority which challenged the
primary ground for the superior court’s summary denial of his 2019 petition”
(ibid.)—the line of cases holding that prior special circumstances findings are
binding at the prima facie stage of a resentencing proceeding—“the 2020
petition was not procedurally barred as a successive petition” (ibid.).
Putting to one side the analytical muddiness created by the term
“successive petition” in this context,5 we read Farfan as a straightforward
5 In their briefs, both Beaudreaux and the People refer somewhat
loosely to the bar on “successive petitions” in discussing issue preclusion,
apparently borrowing the concept from Farfan. But the appellate panel there
used this phrase to describe the People’s unsuccessful argument for
preclusion in Farfan. (Farfan, supra, 71 Cal.App.5th at p. 946.) We do not
read its opinion to suggest that the bar against successive habeas corpus
16
application of Strong, supra, 13 Cal.5th at p. 703, which sided with Court of
Appeal cases holding that felony-murder special-circumstances findings
predating People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark) are not issue preclusive in later section 1172.6
resentencing proceedings. Banks and Clark brought about a change in the
governing law that undermined confidence in felony-murder special-
circumstances findings made under prior law, thus warranting invocation of
the equitable exception to issue preclusion for intervening changes in the law.
But the Strong court made clear that not every change in the law will
“ ‘result in a manifestly inequitable administration of the laws’ ” that
warrants a departure from the ordinary rule of issue preclusion. (Strong, at
p. 717.)
As the Supreme Court later indicated in Curiel, the test is whether
there has been a change so significant that it would result in a different
factual finding on the issue claimed to be foreclosed had the law as it exists
petitions, a rule with many complexities particular to the law of habeas
corpus (see In re Reno (2012) 55 Cal.4th 428, 449–453; In re Clark (1993)
5 Cal.4th 750, 767–770; cf. In re Friend (2021) 11 Cal.5th 720, 728, 737
[construing a statute that codifies the bar against successive habeas petitions
in capital cases]), may be equated with the doctrine of issue preclusion as it
applies in section 1172.6 proceedings.
It seems to us that the potential preclusive bar facing a petitioner who
brings more than one section 1172.6 petition attacking the same conviction is
better analyzed under the rubric of claim preclusion, not by borrowing the
prohibition on successive petitions from the law of habeas corpus. Indeed,
although the trial court cited no authority and did not specify precisely what
preclusionary doctrine it was applying, the gist of its order appears to be
framed in terms of claim preclusion. But since no claim preclusion argument
has been made on appeal, and since the narrower doctrine of issue preclusion
is sufficient for affirmance on this record, we have no occasion to address
whether the claim preclusion branch of res judicata has any applicability in
this context.
17
today governed when the finding was made. (Curiel, supra, 15 Cal.5th at
p. 458.) Beaudreaux points to no change in the law specific to the findings
that he was armed, discharged his gun, and not only caused great bodily
injury to another person, but the death of that person. Instead, he argues
more generally that, “under the felony murder concepts in place when
appellant was tried prior to the changes to section 189, [his] conviction was
certain once the jury believed that he had been involved in the armed robbery
involving Drummond.” “Under those principles,” he contends, “it did not
matter if [Beaudreaux] was the actual shooter, or if the gun discharged
accidentally while struggling for the gun with Drummond, or Drummond
discharged the weapon himself while trying to get a hold of it.”
We see two problems with this line of argument. First, Curiel squarely
rejects the contention that section 1172.6 petitioners may avoid prior jury
findings simply by pointing to the fact that Senate Bill 1437 retroactively
changed the law of murder generally. (Curiel, supra, 15 Cal.5th at pp. 459–
460. [“Curiel argues that the enactment of Senate Bill 1437 itself was such a
significant and unforeseeable change in the law that it would be inequitable
to apply issue preclusion to jury findings in his underlying trial. This
argument is plainly foreclosed by our opinion in Strong.”].) If such a broad-
brush approach were appropriate, the equitable exception for intervening
changes in the law would swallow the doctrine of issue preclusion in
section 1172.6 proceedings entirely, rendering issue preclusion wholly
inoperative in that context. The Curiel court made clear that that is an
overreading of Strong.
Second, even assuming hypothetically that Beaudreaux could produce
evidence of the accidental discharge and self-inflicted wound scenarios he
posits might have occurred here, the law of felony murder has not changed in
18
a manner that would lead to a different result on those supposed facts, even if
changes in the law of murder generally could be a driving consideration. We
still have the longstanding rule that a defendant is guilty of felony murder if,
while intending to commit a qualifying felony, he personally performs an act
that causes death, regardless of whether the fatal act was intentional or
accidental. That is because the mens rea from the qualifying felony supplies
the requisite mens rea for murder. Senate Bill 1437 brought about a number
of changes in the substantive law of murder, but not on this basic point.
“Except for felony murder, section 188(a)(3) makes personally possessing
malice aforethought a necessary element of murder.” (People v. Gentile
(2020) 10 Cal.5th 830, 846, italics added.)
In People v. Coefield (1951) 37 Cal.2d 865, for example, a robber struck
a store clerk in the head with his pistol to “ ‘knock[] him out,’ ” but the gun
discharged, killing the man. (Id. at pp. 867–868.) The Supreme Court held
that section 189 applies to any killing during the commission of a robbery
“regardless of whether it was intentional or accidental.” (Coefield, at p. 868.)
Other examples abound. (See, e.g., People v. Billa (2003) 31 Cal.4th 1064,
1068 [“felony-murder rule covers ‘a variety of unintended homicides resulting
from reckless behavior, or ordinary negligence, or pure accident’ ”]; see also
People v. Washington (1965) 62 Cal.2d 777, 781 [“inadvertent or accidental
killings are first degree murders when committed by felons in the
perpetration of robbery”]; People v. Garcia (2020) 46 Cal.App.5th 123, 152.)
These felony-murder cases are still good law. Beaudreaux has pointed to
nothing in the felony-murder instruction given in his case that was
superseded or invalidated by Senate Bill 1437.
3. The “Actual Killer” Element of Section 189, Subdivision (e)
Even where the threshold requirements for issue preclusion are met (as
they are here), and even where we conclude the equitable exception to issue
19
preclusion does not apply (which is what we have concluded), that does not
end our inquiry into the sufficiency of Beaudreaux’s resentencing petition for
purpose of section 1172.6, subdivision (c). (Curiel, supra, 15 Cal.5th at
p. 463.) There is one more step to the analysis. Having “already determined
that the jury’s factual findings should be given preclusive effect” (id. at
p. 470), we must still “identify what those factual findings are and how they
relate to the elements of murder under a valid theory” today (ibid.).
Here, citing People v. Offley (2020) 48 Cal.App.5th 588 (Offley),
Beaudreaux’s first line of argument is that the limited record of conviction
before us cannot support a valid conviction of murder because of the
possibility the jury found that a third person (i.e., Crowder) shot Drummond
and decided to convict Beaudreaux without making the necessary finding of
malice aforethought on his part. In Offley, the defendant was convicted as a
conspirator to a gang murder under a natural and probable consequences
theory (id. at p. 593), which was problematic because “the natural and
probable consequences doctrine can no longer support a murder conviction”
(id. at p. 595). In later section 1172.6 resentencing proceedings, the People
relied on a section 12022.53, subdivision (d) jury finding that defendant
Offley discharged a firearm in the course of the offense and argued that that
made him liable for murder under current law. (Offley, at p. 598.)
Unpersuaded, the Court of Appeal reversed a summary dismissal because of
the possibility that the jury convicted Offley on a natural and probable
consequences theory based on his mere participation in a murder, without
necessarily finding he acted with the requisite mens rea. (Id. at p. 600.)
We doubt neither the soundness of the Offley court’s reasoning nor
Beaudreaux’s legal premise in relying on it. (See In re Ferrell (2023)
14 Cal.5th 593, 604–608) [granting habeas corpus relief, citing Offley
20
favorably, and holding that a jury’s section 12022.53, subdivision (d) finding
did not supply the missing mens rea element necessary to cure the defect in a
second degree felony-murder conviction rendered pursuant to an instruction
later invalidated in People v. Chun (2009) 45 Cal.4th 1172].) But the
conclusion Beaudreaux draws from that premise is incorrect on the record
before us. Offley is inapposite because no natural and probable consequences
instruction was given here. The Offley court was careful to recognize this key
distinction, commenting that “if the jury did not receive an instruction on the
natural and probable consequences doctrine, the jury could not have
convicted the defendant on that basis, and the petition should be summarily
denied.” (Offley, supra, 48 Cal.App.5th at p. 599.)
Beaudreaux’s case turns instead on whether he could be validly
convicted of robbery felony murder today under section 189, subdivision (a),
which in turn depends on whether his jury found he was Drummond’s actual
killer for purposes of section 189, subdivision (e). We think it unavoidable
that that is precisely what the record shows. In an effort to persuade us to
the contrary, Beaudreaux offers a second line of argument: He claims a
section 12022.53, subdivision (d), firearm use finding does not necessarily
establish that he personally caused Drummond’s death. This is a variation
on the Offley rationale, adapted to causation rather than mens rea. Focusing
here on Crowder’s possible physical involvement in Drummond’s demise,
Beaudreaux claims it is impossible on this murky record to determine
whether he was convicted of murder for committing an act that may have led
indirectly to Drummond’s death, but for which the jury returned a murder
conviction under some causation theory short of personal commission of the
murder.
21
Employing similar logic, the court in People v. Lopez (2022)
78 Cal.App.5th 1, 16–20 (Lopez) reversed a section 1172.6 summary
dismissal. But that case, too, is distinguishable because of the particular jury
instructions given there. The defendant in Lopez was convicted of first
degree murder with a robbery felony-murder special-circumstances finding
and sentenced to life without the possibility of parole. (Lopez, at p. 4.) The
victim was found in his apartment naked and bludgeoned to death. (Id. at
p. 6.) The defendant testified he had been to the victim’s apartment with his
“friend and drug dealer,” who he implied was the actual killer. (Id. at p. 9.)
Though the defendant admitted having been in the victim’s apartment, he
denied killing him or participating in any robbery or even entering the
bedroom in which the body was later found. (Ibid.) The prosecution argued
the defendant was the actual killer and committed the robbery alone, but its
case for that theory was largely circumstantial. (Id. at p. 15.)
Against this evidentiary backdrop, the court instructed the jury on the
legal concept of proximate causation as follows: “ ‘An act causes death if the
death is the direct, natural, and probable consequence of the act and the
death would not have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen if
nothing unusual intervenes.’ ” (Lopez, supra, 78 Cal.App.5th at p. 16.) The
jury found the defendant guilty as charged (id. at p. 10), and many years
later he filed a section 1172.6 resentencing petition, which was summarily
denied for failure to make a prima facie case for relief (Lopez, at p. 11). The
Court of Appeal reversed, pointing out that the jury could have believed some
but not all of the defendant’s testimony. (Id. at pp. 19–20.) In light of the
proximate cause instruction, the court concluded, the jury could have believed
a second assailant was in the apartment but concluded the defendant was
22
actively involved only in the robbery, which justified convicting him of felony
murder but without any need to find he was the actual killer. (Id. at p. 20.)
Under the jury instructions in Beaudreaux’s case, by contrast,
causation was an element the jury had to find in order to convict him of
murder—and it did so find—but there was no amplifying instruction
permitting it to conclude that the instructional phrase “caused the death of
another person” meant anything more than that Beaudreaux shot
Drummond to death, in accord with the plain meaning of those words.
Courts have a sua sponte duty to instruct on proximate causation, which of
course has a specialized legal meaning. (People v. Bernhardt (1963)
222 Cal.App.2d 567, 591; Judicial Council of Cal., Crim. Jury Instns. (2012)
Bench Notes to CALCRIM No. 240.) But this sua sponte duty kicks in only
where the evidence justifies giving such an instruction. Here, we must
assume the court understood its instructional obligations and saw no
evidence to instruct on the legal meaning of causation.
Nor was there an aiding and abetting instruction allowing the jury to
convict Beaudreaux as an accomplice to the conduct of Crowder. It is true
that an aiding and abetting charge was indirectly given in the form of the
accomplice witness instruction pertaining to Crowder’s testimony. It is also
true that there is a sentence in this instruction stating that a witness may be
“subject to prosecution” if he either “personally committed” the charged crime
or was “an accomplice to [it].” But we do not think any reasonable juror
would have cherry-picked the reference to “personal” commission of a crime
in an accomplice witness instruction designed to provide guidance for the
evaluation of Crowder’s credibility and, based on that guidance, concluded
Crowder personally shot Drummond, while circuitously voting to convict
Beaudreaux as an accomplice without having to consider his mental state.
23
The possibility the accomplice witness instruction may have been
misread in this manner strikes us as highly improbable. By its terms, the
instruction cannot reasonably be read to invite the jury to consider whether
Crowder shot Drummond. Quite to the contrary, the whole point of the
instruction—which is reflected in its title, “Accomplice Testimony Must be
Corroborated: Dispute Whether Witness Is Accomplice” (italics added)—was
to focus the jury on Crowder’s possible liability as an aider and abettor, not
on the possibility that he personally was a triggerman. After taking the
entirety of the record of conviction into account, the dispositive consideration
for us is that, while Crowder was charged as a codefendant with murder, he
was never charged with discharging a gun or inflicting great bodily injury on
Drummond. Only one of two originally named defendants was charged,
convicted, and found to be the fatal shooter in this case, and that defendant
was Beaudreaux.
Accordingly, reading all the charges, the instructions, the verdicts, and
the findings as a whole, we see no legal route Beaudreaux’s jury could have
taken to convict him without finding he was Drummond’s actual killer. As
our Fourth District, Division One colleagues stated in affirming the summary
denial of resentencing relief for a defendant seeking resentencing relief in
similar circumstances: “Without weighing conflicting evidence or making
credibility determinations, the record of conviction irrefutably establishes as
a matter of law that the jury determined [the defendant] was the actual
killer. The [jury’s] . . . only path to convicting [the defendant] of first degree
felony murder with special circumstances and a personal-infliction-of-great-
bodily-injury enhancement was based on a finding she actually killed [the
victim].” (People v. Harden, supra, 81 Cal.App.5th at p. 56.)
24
We conclude no reasonable juror who found that Beaudreaux
personally discharged his gun and caused great bodily injury and death
might have believed Crowder personally did the same thing, with
Beaudreaux only indirectly involved in the fatal act, but liable for it
nonetheless. Stated in terms framed by the pivotal legal issue here, we
believe it would have been impossible on this record for a jury to have made
the findings it did without finding that Beaudreaux was Drummond’s actual
killer. (Cf. In re Lopez (2023) 14 Cal.5th 562, 591–592 [harmlessness of
alternative-theory error in murder verdict because of missing element in jury
instructions on murder may be assessed in light of whether other jury
findings made it impossible to find guilt without also finding the missing
element].) As a result, the trial court’s procedural errors in ordering the
summary dismissal of Beaudreaux’s resentencing petition at the prima facie
stage of these section 1172.6 proceedings are harmless.
III. DISPOSITION
The order dismissing Beaudreaux’s second petition for section 1172.6
relief is affirmed.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
25
Trial Court: Superior Court of California, County of Alameda
Trial Judge: Hon. Morris D. Jacobson
Counsel: Janet J. Gray, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Bridget Billeter, Supervising
Deputy Attorney General, and Masha A. Dabiza, Deputy
Attorney General, for Plaintiff and Respondent.
People v. Beaudreaux – A166001