People v. Rogers CA2/1

Filed 6/28/21 P. v. Rogers CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B303800

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A383323)
v.

MORRIS ROGERS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Reversed and remanded
with directions.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Daniel C. Chang and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
 A jury convicted Morris Rogers of one count of second
degree murder (Pen. Code,1 §§ 187, subd. (a), 189) and two counts
of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury
found not true the allegation that he personally used a firearm
(§ 12022.5), but found true the allegation that a principal was
armed with a firearm (§ 12022, subd. (a)). Rogers was sentenced
to 21 years to life in state prison.
In 2018, Rogers sought resentencing relief pursuant to
section 1170.95.2 On December 6, 2019, the superior court found
that Rogers failed to make a prima facie case for relief and denied
his petition. It found Rogers was not entitled to relief because he
directly aided and abetted in the murder and because the natural
and probable consequences theory was not presented as a basis
for the jury’s verdict.
On appeal, Rogers argues that the superior court erred in
not issuing an order to show cause and in impermissibly
weighing the evidence during the court’s prima facie review. As
we describe below, because the record does not show as a matter
of law that Rogers was guilty of murder under a still-valid theory,
we conclude the superior court erred in denying Rogers’s section
1170.95 petition. We reverse with instructions for the superior
court to issue an order to show cause and conduct a hearing
pursuant to section 1170.95, subdivision (d).

1 All unspecified statutory references are to the Penal Code.
2 Rogers filed a petition for writ of habeas corpus, which
the trial court treated as a petition for section 1170.95
resentencing relief.

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 BACKGROUND
A. Factual Summary
We provide a truncated summary of the facts derived from
our ruling on Rogers’s 2001 petition for writ of habeas corpus,
People v. Rogers (Jan. 9, 2003, B148541) (Rogers), which, in turn,
derived facts from our direct appeal opinion, People v. Smith
(Jun. 12, 1985, 2d Crim. No. 45051) [nonpub. opn.].
Rogers, Frederick Butler, Virgil Gulley, Raymond Flynn,
Avery Smith, Vernon Nash, and Eric Morgan were members of a
gang known as the 90th Street Hoover Crips. On May 24, 1982,
they expressed a desire for revenge upon another gang, the 92nd
Street Hoover Crips. Rogers said he “wanted to knock somebody
out.” According to Butler, this meant that Rogers wanted to
fight. Smith displayed a gun to fellow gang member Gulley and
said, “I’m ready to get off now,” meaning that he wanted to shoot
someone. Someone else said that he wanted to “check out the
92nd Street gang,” meaning that he wanted to engage in a fight.
(Rogers, supra, B148541, at pp. 2-3.)
That evening, the group went to the vicinity of 95th Street
and Hoover. Rogers, Flynn, and Smith stood in the driveway of
an auto wrecking yard, and the others stayed back, near a
neighboring apartment house. (Rogers, supra, B148541, at p. 3.)
Butler saw Rogers, Flynn, and Smith standing side by side
with their arms outstretched. He saw all three men holding
guns. He heard four to five shots and saw flashes from Flynn’s
and Smith’s guns. He did not see who fired the first shot and did
not see all three fire shots but to deflect suspicion from himself,
he told the police that he saw all three shoot. (Rogers, supra,
B148541, at p. 3.)

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 Gulley saw Rogers, Flynn, and Smith with a gun that
night. At the preliminary hearing, however, he could not recall
anyone other than Smith having a gun. (Rogers, supra, B148541,
at p. 3.)
Tyran Martin was visiting with Charles Poole and Kim
Gaines when the shooting began. He was wounded in the
shoulder and leg. There were three or four guns that fired 10 to
15 shots. Martin could not tell how many people were shooting.
(Rogers, supra, B148541, at p. 4.)
Poole, who is known as “Squirrel,” was seated in his car
when he heard what sounded like firecrackers. Gaines fell onto
him. Poole looked toward the auto wrecking yard, where he saw
flashes of gunfire. He saw more than one and possibly three
guns. Gaines died as a result of the shooting. Poole suffered
gunshot wounds to the abdomen and leg. (Rogers, supra,
B148541, at p. 4.)
After the shooting, the group fled the scene. Rogers and
Smith encountered William Fray. Rogers pointed a gun at Fray
from a distance of three feet. (Rogers, supra, B148541, at p. 4.)
While running from the scene, Flynn boasted to Gulley,
“Yeah that was Squirrel out there. I shot . . . Squirrel.” (Rogers,
supra, B148541, at p. 5.)
Rogers, Flynn, and Smith were charged with Gaines’s
murder and assault with a deadly weapon on Poole and Martin.
Butler and Gulley were granted immunity to testify for the
prosecution. (Rogers, supra, B148541, at p. 5.)
B. Trial and Direct Appeal
At trial, the People did not attempt to establish which
defendant shot Gaines. Although the court instructed on natural
and probable consequences liability for murder, the People did

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not argue that theory to the jury. Rather, the People argued each
of the defendants were principals and equally guilty because they
aided and abetted in the commission of the murder.
The trial court instructed the jury pursuant to CALJIC
Nos. 3.00, which defined principals, and 3.01, which set forth the
elements for aiding and abetting. In part, CALJIC No. 3.00
instructed that, “One who aids and abets is not only guilty as a
principal of the particular crime that to his knowledge his
confederates are contemplating committing, but he is also liable
as a principal for the natural and reasonable or probable
consequences of any act that he knowingly aided or encouraged.”
As to CALJIC No. 3.01, the trial court instructed the jury
that “A person aids and abets the commission of a crime if, with
knowledge of the unlawful purpose of the perpetrator of the
crime, he aids, promotes, encourages or instigates by act or
advice the commission of such crime.”
The jury convicted Rogers, Flynn, and Smith of second
degree murder as to Gaines and two counts of assault with a
deadly weapon as to Poole and Martin. They found true the
allegation that Smith and Flynn personally used a firearm, but
did not find that allegation true as to Rogers. The jury also found
true the allegation that a principal was armed with a firearm.
This court affirmed the judgment against Rogers and his
codefendants on June 12, 1985.3 On direct appeal, all three
defendants argued that the court’s use of CALJIC Nos. 3.00 and
3.01 was erroneous under People v. Beeman (1984) 35 Cal.3d 547
(Beeman). (People v. Smith, et al., supra, 2d Crim. No. 45051.) In

3 We remanded the matter for resentencing due to an error
in Flynn’s sentence.

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Beeman, our Supreme Court held that CALJIC No. 3.01 was
defective because the instruction did not explicitly state that an
aider or abettor must have the intent or purpose either of
committing, or of encouraging or facilitating commission of, the
offense. (Beeman, supra, at p. 560.) We concluded that CALJIC
No. 3.00 suffered from the same defect, citing People v. Caldwell
(1984) 36 Cal.3d 210, 223-224.
We agreed that the trial court committed instructional
error under Beeman, but found the error to be harmless.4
Notably, we stated that all three defendants shot at Gaines and
that the jury had found true the allegation that all three
defendants personally used a firearm. (People v. Smith, et al.,
supra, 2d Crim No. 45051, at pp. 6-7, 20.) As we later
determined, these factual findings were erroneous.
C. Habeas Corpus Proceedings
In 2001, Rogers filed a petition for writ of habeas corpus
alleging ineffective assistance of appellate counsel. He argued
counsel failed to raise errors “which ultimately mislead this court
on direct appeal in reaching unreasonable factual findings
regarding the Beeman error claim.”

4 In our direct appeal opinion, we conducted our harmless
error analysis pursuant to People v. Garcia (1984) 36 Cal.3d 539.
(See People v. Smith, et al., supra, 2d Crim. No. 45051, at p. 6.)
Thereafter, our Supreme Court held that in cases of Beeman
error, we should apply the higher harmless error standard as
articulated in Chapman v. California (1967) 386 U.S. 18, 24 [87
S.Ct. 824, 17 L.Ed.2d 705]. (People v. Dyer (1988) 45 Cal.3d 26,
64.) In our 2003 denial of Rogers’s petition for writ of habeas
corpus, we applied the Chapman standard and acknowledged the
Garcia standard was no longer applicable.

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 On January 9, 2003, this court issued an order denying the
habeas petition. (Rogers, supra, B148541.) In that order, we
acknowledged that our harmless error analysis on direct appeal
as to Rogers was based on factual mistakes, concluding that
“[t]he evidence does not establish as a matter of law that he was
one of the shooters. . . . [¶] Based upon [the] evidence, the jury
found to be not true, as to Rogers, all allegations that he
personally used a firearm.” (Id. at p. 7.)
Nonetheless, we again determined the Beeman error was
harmless. We noted that the evidence established that Rogers
sought revenge for a fellow gang member; he wanted to fight
members of the rival gang; and he was present when Smith
expressed a desire to kill rival gang members. Further, there
was evidence from which the jury could conclude that Rogers
went to the site of the shooting with a handgun and pointed it as
if he intended to shoot, “as well as inconsistent statements from
the same witnesses that would cast doubt on at least the latter
part of that conclusion.” We found Rogers’s mere presence
encouraged the shootings, and he actively collaborated with the
group to go forth and seek revenge. We concluded, “The evidence
against Rogers is susceptible of but a single interpretation: he
accompanied the others to the site of the shooting knowing they
at least intended to assault rival gang members and intending to
encourage and facilitate that criminal conduct. The evidence
therefore establishes Rogers’s intent as a matter of law, and
there is no contrary evidence worthy of consideration.” (Rogers,
supra, B148541, at p. 9.)
D. Section 1170.95 Petition
On October 17, 2018, Rogers filed a petition with the
superior court seeking resentencing relief pursuant to section

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1170.95. The court appointed counsel, and the parties submitted
opposition and reply briefs. To their briefs, the parties attached
relevant portions of our direct appeal opinion and a complete copy
of our 2003 order.5 The parties presented a portion of the trial
transcript to the court, which included the court’s instructions to
the jury and counsel’s closing arguments.
On December 6, 2019, the court denied Rogers’s section
1170.95 petition. In describing the salient facts in its ruling, the
court observed that the three defendants discussed a desire for
revenge, a witness saw three people pointing guns at rival gang
members, and shots were fired. Fray testified that he
encountered Rogers as Rogers left the scene of the shooting and
that Rogers pointed a gun at him. The court stated that, “[t]his is
not a natural and probable consequences case. A natural and
probable consequences case is one where the suspect intends to
commit a target crime, but a different crime then occurs. Under
natural and probable consequences, the suspects would be liable
for the crime that occurred if it was a natural and probable
consequence of the target crime. In this case, the intent was to
seek revenge against rival gang members, which was why the
defendant and the codefendants were armed. This is a direct

5 Rogers attached a copy of CALJIC No. 3.00 (1976 rev.)
and CALJIC No. 3.01 (1974 rev.) to his reply brief. It is not clear
whether these records are from Rogers’s trial. The text of these
instructions differ in insubstantial ways from the instructions the
court read to the jury. The appellate record also includes one
page of the amended abstract of judgment dated August 25, 1999.
The clerk of the Los Angeles County Superior Court was unable
to find a copy of the accusatory pleading, the abstract of
judgment, or the probation officer’s report.

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aider and abettor case.” The court dismissed the petition without
issuing an order to show cause.
Rogers timely appealed the order.
DISCUSSION
A. Legal Framework
Prior to the enactment of Senate Bill No. 1437, a defendant
who aided and abetted a crime that resulted in a victim’s death
could be convicted of murder under a natural and probable
consequences theory even if the defendant did not act with
malice. (People v. Offley (2020) 48 Cal.App.5th 588, 595.) The
Legislature enacted Senate Bill No. 1437 “to amend the felony
murder rule[6] and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 did not alter the viability of a murder
conviction based on direct aiding and abetting liability. (People v.
Offley, supra, 48 Cal.App.5th at p. 596 [“One who directly aids
and abets another who commits murder is thus liable for murder
under the new law just as he or she was liable under the old
law”].) For direct aider and abettor liability, “the aider and
abettor must possess malice aforethought.” (People v. Gentile
(2020) 10 Cal.5th 830, 844; see People v. McCoy (2001) 25 Cal.4th
1111, 1118 [one who directly aids and abets in murder “must

6 The felony murder rule is not at issue in this appeal.

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know and share the murderous intent of the actual
perpetrator”].)
Senate Bill No. 1437 also enacted section 1170.95, which
provides a vehicle for persons who were convicted of murder
pursuant to a now invalidated theory to petition to have their
conviction vacated and to be resentenced. (People v. Lewis (2020)
43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020,
S260598; see § 1170.95 subd. (a).)
Section 1170.95 sets forth a multistep decision-making
process. First, a petitioner must make a prima facie showing
that he was “ ‘convicted of felony murder or murder under a
natural and probable consequences theory,’ ” and that “ ‘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 or murder
under the natural and probable consequences doctrine. [¶]
(2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.’ ” (People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1164, citing § 1170.95,
subd. (a).)
At these initial stages, “the ‘trial court should not evaluate
the credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law . . . . [I]f the
record “contain[s] facts refuting the allegations made in the
petition . . . the court is justified in making a credibility
determination adverse to the petitioner.” [Citation.] However,

10
this authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, [subdivision] (d)
is limited to readily ascertainable facts from the record (such as
the crime of conviction), rather than factfinding involving the
weighing of evidence or the exercise of discretion . . . .’
[Citation.]” (People v. Nguyen, supra, 53 Cal.App.5th at pp. 1165-
1166.) A petitioner fails to establish a prima facie showing if the
petition is untrue as a matter of law. (Ibid.; see People v.
Swanson (2020) 57 Cal.App.5th 604, 612, review granted Feb. 17,
2021, S266262 [stating that the “contents of the record of
conviction defeat a prima facie showing when the record shows as
a matter of law that the petitioner is not eligible for relief”]; but
see People v. Garcia (2020) 57 Cal.App.5th 100, 116, review
granted Feb. 10, 2021, S265692 [“The trial court should not
accept the petitioner’s assertions as true and issue an order to
show cause if substantial evidence in the record supports a
murder conviction under current law”].)
“ ‘If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show
cause.’ ” (People v. Offley, supra, 48 Cal.App.5th at p. 596,
quoting § 1170.95, subd. (c).) Thereafter, “the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing. . . .” (§ 1170.95,
subd. (d)(3).) “The prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens.” (Ibid.)
B. The Resentencing Court Erred in Denying Rogers’s
Petition During Its Prima Facie Review
Rogers argues that the resentencing court erred in denying
his petition without issuing an order to show cause and holding

11
an evidentiary hearing. He maintains the court impermissibly
engaged in factfinding during its prima facie review to conclude
that he was guilty of murder as a direct aider and abettor.
Respondent argues the court properly found the petition failed as
a matter of law because Rogers was prosecuted as a direct aider
and abettor. We agree with Rogers.
Given the procedural peculiarities of this case, Rogers’s
record of conviction did not establish as a matter of law that
Rogers was a direct aider and abettor. As we acknowledged in
both our direct appeal opinion and our 2003 order, due to the
Beeman instructional error, neither CALJIC No. 3.00 nor
No. 3.01 required the jury to find Rogers intended to commit
murder. Thus, nothing in the trial record establishes that Rogers
harbored the required mens rea to hold him culpable as a direct
aider and abettor. To the contrary, the instructions advised the
jury they could convict Rogers if the murder was “the natural and
reasonable or probable consequence[ ] of any act that he
knowingly aided or encouraged” (CALJIC No. 3.00), and if he
acted “with knowledge of the unlawful purpose of the
perpetrator” (CAJLIC No. 3.01). These instructions allow for a
possibility that the jury convicted him under a natural and
probable consequences theory that is no longer valid.
In our 2003 order, we did not determine that the evidence
established Rogers harbored malice in the commission of the
murder as is now required for a conviction for murder as an aider
and abettor. Rather, in applying the harmless error standard for
prejudicial error, we considered whether Rogers had “ ‘the intent
to encourage and bring about conduct that is criminal, not the
specific intent that is an element of the target offense.’ ” (Rogers,
supra, B148541, at p. 8.) We applied the existing understanding

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of the Chapman standard to conclude that “the murder verdict
surely [was] not attributable to the [instructional] error.”
(Rogers, supra, at p. 8.) We concluded the record showed that
Rogers “accompanied the others to the site of the shooting
knowing they at least intended to assault rival gang members
and intending to encourage and facilitate that criminal conduct.”
(Id. at p. 9.) Our holding suggests that the facts supported a
verdict based on application of the natural and probable
consequences doctrine. (See People v. Duke (2020) 55 Cal.App.5th
113, 122, review granted Jan. 13, 2021, S265309 [noting that the
harmless error analysis in the direct appeal opinion concluded
only that the defendant could have been convicted under the
natural and probable consequences doctrine]; cf. People v. Lewis,
supra, 43 Cal.App.5th at pp. 1138-1139 [concluding that the
harmless error analysis in the direct appeal opinion foreclosed
§ 1170.95 relief because “[t]he issue whether [the] defendant
acted as a direct aider and abettor had thus been litigated and
finally decided against [the] defendant”].) Thus, nothing in the
record of conviction before the resentencing court permitted it to
conclusively determine Rogers was a direct aider and abettor.
Accordingly, the matter must be remanded for an order to
show cause pursuant to section 1170.95, subdivision (c), and a
hearing pursuant to section 1170.95, subdivision (d), during
which the parties “may rely on the record of conviction or offer
new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) We express no opinion on Rogers’s
ultimate entitlement to relief following the evidentiary hearing.

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 DISPOSITION
The order denying Rogers’s petition for resentencing under
section 1170.95 is reversed and the matter is remanded to the
superior court. On remand, the superior court shall issue an
order to show cause and conduct a hearing in accordance with
section 1170.95, subdivisions (c) and (d).
NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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