People v. Lockett CA2/8

Filed 7/23/21 P. v. Lockett CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B301103

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA058054)
v.

JOSHUA R. LOCKETT et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Reversed and
remanded with directions.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant Joshua R. Lockett.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant Terrell D. Henderson.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
 Petitioners Joshua R. Lockett and Terrell Henderson were
convicted of the murder of Brandon Houston. They appeal from
the denial of their petitions for resentencing under Penal Code
section 1170.95.1 Among other things, Petitioners2 contend the
trial court’s findings are not supported by substantial evidence
and they are entitled to relief under Senate Bill No. 1437 (SB
1437). We agree. We therefore reverse the order denying
Petitioners’ petitions for resentencing with directions.
PROCEDURAL BACKGROUND3
The Underlying Crime
On November 29, 2012, Brandon Houston and Ke’ana
Moore, Houston’s girlfriend and the mother of his infant son, had
a heated argument and shoving match. The electricity had been
turned off in the Lancaster apartment where they lived, and
Houston was jealous because he discovered Moore had been
texting an ex-boyfriend. Although Moore wanted to leave,
Houston did not want her to take the baby away from the house.
At trial, one of Houston’s sisters testified Houston told Moore he
did not want another man coming over to pick up Moore and his
son. The sister remembered Moore telling Houston “he was going

1 All further section references are to the Penal Code unless
otherwise specified.

2 We consider Petitioners’ arguments together because they
make similar arguments in their separate appeals, and each has
joined in the other’s arguments.
3 We repeat the facts and the trial proceedings as set forth in
our previous opinion, People v. Lockett, et al. (Nov. 6, 2015,
B256242) [nonpub. opn.], on which the parties also rely.

2
to get his.” Houston walked outside to calm down. Moore called
her sister and asked for a ride.
Henderson, Lockett, and Randy Sullivan (the defendants)4
arrived in a black SUV that Henderson was driving. Henderson
and Sullivan are brothers; Lockett is their cousin. Henderson
was dating Moore’s sister. Houston and his 14-year-old nephew,
D.S., were sitting on the steps outside the apartment. The
defendants and Houston were all acquainted. Houston had once
fought Lockett when they were both in high school.
Upon arriving at the apartment building, Henderson
honked the horn. Moore came outside with her baby (Houston’s
son). Henderson got out of the car and moved the seat so that
Moore could get in. Sullivan and Lockett were still in the car.
As Moore went to the SUV, Houston told her to wait. When
Moore protested, Houston said he wanted to kiss his son.
As Houston was walking away from the SUV, Henderson
bumped or pushed him and told him to move. Houston backed up
and prepared to hit Henderson. D.S. told Henderson: “Don’t put
your hands on my uncle.” Henderson and D.S. “squared up,” or
prepared to fight. By this time, D.S.’s mother and Houston’s
sister, Chrishonda Coulter, had joined the group. Either Houston
or Coulter told Henderson, “You aren’t going to fight him,”
referring to D.S., “he’s 14.” Coulter told Henderson that D.S. was
not grown, indicating that if Henderson had a problem with D.S.,
he had a problem with her.
Sullivan got out of the SUV, took off his shirt, and said,
“I’m Southside Crip. Where you from?” Sullivan was a self-

4 Henderson, Lockett, and Sullivan were jointly tried for
Houston’s murder. While Sullivan also filed a petition for
resentencing, he is not a party to this appeal.

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admitted gang member. Houston responded, “I’m not with that.”
Coulter said she knew some people from “190,” a Crips gang in
Carson.5 Sullivan said, “We don't get along with those, they just
killed one [of] us.” Houston told Sullivan, “It’s not about that.
It’s about you guys coming to my mom’s house being
disrespectful.”
Sullivan shook hands with Houston and said he “had love”
for Houston, Moore, and their son. However, Henderson and D.S.
were still arguing, and Coulter attempted to intervene.
Houston’s mother threatened to call the police. Henderson and
Sullivan got back into the SUV. As defendants and Moore drove
away, Henderson yelled that they would be back. In the car,
Sullivan said he needed to call one of his “homies” to tell them he
just got into it with someone from 190. He did not call anyone at
that time. The defendants dropped Moore off and drove away.6
Meanwhile, Houston and D.S. walked to a liquor store.
Houston and D.S. encountered some of Houston’s friends who had
heard Houston was “getting jumped.” As Houston and D.S. were
talking to the friends, they saw the SUV drive past. Coulter and
her sister had joined Houston and D.S. Between 10 and 20
minutes had passed since Henderson said he would be back.
D.S. saw the defendants and two other people in the SUV.

5 Coulter testified at trial that while this discussion of gangs
occurred, “[i]t wasn’t about that. It was about respecting my
mom’s home.”

6 On cross-examination, Moore testified that while she was
in the SUV there was no discussion of anyone getting a gun, and
no discussion at all of the Compton Southside Crips.

4
Lockett was driving. Henderson pointed at Houston’s group.7
The SUV drove in a back alley through a nearby shopping center.
D.S. saw the SUV circle the area once, then he lost sight of it.
Houston, along with his friends and family, continued walking,
only to meet the group from the SUV walking straight over to
them. The defendants were accompanied by a fourth man,
Denelle Wilson, who some of Houston’s group knew as “Baby
Frost” or “Jack Frost.” Wilson was in a relationship with
Henderson’s and Sullivan’s sister. A fifth man wearing a black
hoodie and a yellow or gold shirt lagged behind. No one with
Houston recognized the fifth man.
The two groups met. One of Houston’s friends, Aaron
Chism, knew Henderson and Lockett; they had gone to school
together and Chism described them as “homeys.” Chism also had
seen Sullivan around; they shook hands. Sullivan said, “How do
you want to do this?” When D.S. asked what he meant, Sullivan
said, “You said you want to fight my brother,” referring to
Henderson.8 Henderson said he wanted to fight D.S., but Coulter

7 On cross-examination, Coulter testified she waved the SUV
down.

8 According to Coulter, in response to Sullivan’s question,
“everybody was like ‘we all came to fight.’ ’’ On cross-
examination, Coulter testified that Henderson said he wanted to
fight D.S.; Coulter said D.S. was a kid and Henderson would have
to fight her. Henderson responded: “ ‘Ma’am, my mother taught
me better than that. I am not going to hit you.’ ’’ The fight broke
out. Coulter blacked out and fell to the ground. When she woke
up, she saw a guy standing over Houston, shooting him. Coulter
indicated she did not remember being punched and did not know
if she lost consciousness because of a blow or because of health
reasons.

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said she would not allow it because D.S. was underage.
Henderson ran up and punched D.S. in the nose. Everyone began
fighting. Sullivan was fighting one of Houston’s friends. Lockett
was fighting Houston.
The fifth man wearing a hoodie was hiding behind a car.
He was not fighting anyone. Suddenly, he left his position by the
side of a car and approached the middle of the crowd.9 He fired
two shots in the air. Everyone scattered and began running
away. The shooter pointed the gun at one of Houston’s friends,
shot, and missed. The shooter then looked at Houston. Houston
turned and tripped on the curb. The shooter shot Houston in the
leg, then approached, stood over him, and fired multiple shots at
him. D.S. testified the only person he saw with a gun or weapon
was the shooter.
The defendants, Wilson, and the shooter ran back to the
SUV. They drove to the home of Shemita Cartwright, Henderson
and Sullivan’s sister, and Wilson’s girlfriend. Police arrived
sometime later and apprehended the defendants, but not the
shooter. The black SUV was parked inside a closed garage.
Police recovered cell phones in the house; the call and message
history had been deleted from each phone. Law enforcement was
unable to locate the shooter.
The Trial Proceedings
The defendants were charged in a single-count information
with murder. (§ 187, subd. (a).) The information also alleged the
defendants committed the crimes for the benefit of, at the
direction of, and in association with a criminal street gang with

9 One of Houston’s friends testified he did not see the shooter
before the shots were fired, “because the shooter, he did like a
magic trick. He just appeared out of nowhere.”

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the intent to promote, further and assist the gang (§186.22, subd.
(b)(1)(C)) and that a principal personally and intentionally
discharged a firearm which caused great bodily injury and death
(§ 12022.53, subds. (b)–(e).) It further specifically alleged
Henderson suffered a prior strike conviction (§§ 667, subd. (d)
and 1170.12, subd. (b)) and Sullivan served two prior prison
terms (§ 667.5). The defendants pleaded not guilty and denied
the special allegations.
At trial, the prosecution presented evidence of the events as
described above. The prosecution also offered the testimony of
two gang experts. The first expert explained that in gang
culture, respect “is huge,” and “a perceived act of disrespect can
go anywhere from a verbal altercation to a shooting . . . at any
second.” He suggested that in a “territorial, South Central L.A.
gang mentality,” an incident or threat that disrespects the gang
would have to be addressed. When presented with a hypothetical
based on the facts of the case, the expert opined the brawl was a
distraction that allowed the shooter to conduct a daytime
execution that would benefit the gang.
The second gang expert testified about the Southside
Compton Crips. He indicated they “associate with the color blue,
sometimes black, blue and gold, because they’ll often wear
lettered attire, and . . . some of their attire is the Seattle
Mariners’ attire, where it would be blue and gold . . . you’ll have a
gold ‘S’ on a blue hat.” He also opined that, based on a
hypothetical similar to the facts of the case, he would conclude
the shooting was gang-related. He further testified: “They left
together, they came back together, they . . . left the scene
together, and it’s been in my experience over the years, gang
members going to a rival area or against a rival, they’re usually

7
going to make sure—especially if they’re going in another
neighborhood—that they are protected and they have a weapon.
And in all the cases that I can recall, the persons in the car are
going back to commit the crime, with the early assault or the
shooting, are aware that there is a weapon in the car.”
Lockett also offered the testimony of a gang expert. In
response to a hypothetical mirroring the facts of the case, the
expert opined the cousin of the person invoking the Southside
Crips gang name would not be associating for the benefit of the
gang. He opined the facts represented a confrontation related to
family matters, and both groups appeared to have the
expectation of merely a fight, with the exception of the shooter.
The expert did indicate if the shooter was from the Southside
Compton Crips, his opinion would be that the shooting was likely
for the benefit of the gang. However, he further explained that
the mere shouting of gang names does not automatically mean a
person is “gang banging.”
Lockett testified on his own behalf.10 According to Lockett,
at the time of the incident, Henderson and Lockett were living in
the same house. Henderson’s girlfriend (also the mother of his
child) asked him to pick up her sister, Moore. As Henderson and
Lockett were leaving the house, Sullivan called and asked for a
ride because his bicycle tires were flat. As the three defendants
pulled up to Houston’s house, Lockett could see that Houston was
agitated. Lockett knew Houston; they had previously had an
altercation in high school. However, they had not had any

10 Prior to trial, Lockett was caught attempting to pass a note
to Henderson while in jail. The note detailed a version of the
events leading up to and including the shooting. At trial,
Lockett’s testimony was consistent with the note.

8
problems since, and Houston had been to Lockett’s house
multiple times. Moore was crying as she walked to the SUV.
Houston approached to kiss the baby. D.S. was behind Houston.
Sullivan tried to help Moore get the baby in the car. Lockett was
sitting in the passenger seat. He did not know exactly what
happened, but Henderson and D.S. ended up having an
altercation. Houston and Sullivan exchanged words. Lockett got
out of the car to let Sullivan out of the backseat. The exchange
between Henderson and D.S. grew more heated. Coulter and
Sullivan made gang references. Lockett did not intervene,
because, as he explained: “I don’t have anything to do with
gangs, so I don’t know. I don’t want to say anything about it.”
He denied being a gang member or associating with gangs. He
testified Sullivan was his cousin. Sullivan sometimes went to his
mother’s house, where Lockett was living, so “of course” Lockett
hung out with him. But Lockett and Henderson were close and
went everywhere together.
In Lockett’s version of events, Sullivan told Houston they
had not come to disrespect Houston’s house. Houston, observing
Henderson and D.S., said there would be no fighting right there.
Instead, “If you wanna fight, you all drop my son off and come
back in front of the apartments to fight.” Once Lockett got back
into the car, Henderson pointed to D.S. and said, “I’ll be back for
you.” After they drove away, Sullivan said he was going to call
someone. Henderson responded: “You don’t have to call nobody,
this between me and [D.S.].” Sullivan did not call anyone. They
dropped Moore off. They left again, with Lockett driving.
Henderson called Wilson. Lockett thought Henderson was going
to get Wilson and they were all going to a fight. Lockett went
along because of Henderson. Once in the car, Wilson asked if

9
they could pick up his cousin.11 Lockett responded that he did
not put gas in the car and was “just the person with a valid
license.” Wilson directed them to a house where he met someone
at the front door. He returned to the car with a man he
introduced as his cousin Darren. Lockett did not see any
weapons on Darren. There was no discussion of weapons.
Everyone greeted Darren and introduced themselves. Lockett
had never met Darren before. Lockett drove to the designated
location of the fight. He drove past Houston’s group on the street
because he did not realize it was them. However, there were
people in the street flagging down the car. No one in the car
made any statements relative to gangs, flashed gang symbols,
referred to having a gun, or mentioned weapons. There was talk
of everyone fighting, if necessary. Lockett was going back for
Henderson to fight D.S. If multiple guys tried to jump
Henderson, Lockett was prepared to defend his cousin.
Lockett parked the car, and everyone got out. Lockett did
not talk to Darren. When they met Houston’s group, Sullivan
shook someone’s hand. Sullivan asked, “How you guys wanna do
this?” Henderson said he wanted to fight D.S. D.S. took off his
shirt and began walking toward Henderson. Coulter also walked
toward Henderson, saying if he was fighting D.S., he would have
to fight her. Henderson said he would not fight Coulter,
indicating his mother had raised him “better than that,” and he
would not hit a woman. After that, everyone was in the middle of

11 Lockett testified that Wilson said, “his cousin . . . [was]
going back to his brother Robert house, and he asked me can I go
pick him up.” On cross-examination, Lockett testified the
defendants picked Wilson up at his brother Robert’s house.
Lockett also admitted on cross-examination that Wilson “was
called backup.”

10
the street, some running around, some “squaring off,” or
preparing to fight, and some fighting. Lockett began looking for
Henderson. Lockett was hit, or he tripped and fell. As he was
getting up, he saw someone wearing a black hoodie run past.
Shots rang out. As it turned out, Houston was killed. Lockett
was scared for his life, so he ran. He began to vomit. He made
his way back to the SUV and handed the car keys to Sullivan.
He thought the man in the black hoodie might have been the man
Wilson brought, and he “didn’t want any part of that.” They all
went to Lockett’s cousin’s house. No one spoke in the car.
Lockett was scared. He again vomited. He saw Wilson tell
Darren, “Let’s go.” The two left. Sometime later the police
arrived.
Lockett also offered the testimony of his cousin, Shemita
Cartwright. Cartwright testified the defendants, Wilson, and a
fifth man wearing a black hoodie came to her house. She only
saw the fifth man briefly before he left with Wilson. She had
never seen him before. On cross-examination she testified that
when she opened the door for the group, no one was saying
anything, throwing up, screaming, or sweating, nor did they look
nervous. She testified that the fifth man was not one of Wilson’s
two cousins she had seen before. She also admitted on cross-
examination that during an interview with police on the day of
the incident, she did not tell them that a fifth man wearing a
black hoodie came to her house with Sullivan and Petitioners.
Argument, Deliberations, and Verdicts
In his closing argument, the prosecutor argued the
defendants engaged in a premeditated, deliberate murder of
Houston. The prosecutor asserted that when Sullivan said he
had to call someone because of the issue with 190, the person

11
called was the shooter; Lockett drove because they all knew there
was a gun in the car and they wanted no problems if they were
pulled over by police; and the shooter hid during the brawl
because they all had a plan. The prosecutor argued the shooter
would only know the defendants had a “beef” with Houston if
Petitioners and Sullivan had told him. He asserted the shooter
was wearing gang colors, he hid and did not get involved in the
street fight, and he waited until he could sneak into the crowd
and kill Houston. The prosecutor further repeatedly argued the
incident was a premeditated and planned gang crime, reasoning
that if the shooter was just a guy “picked up out of the blue, why
not just start shooting everybody, right? Just start blasting.”
The prosecutor contended the group had to come back because
“gang members don’t fight fair,” the group felt disrespected and,
in accordance with gang culture, they had to “get a guy with a
gun” and “make a statement.”
The jury was instructed on first and second degree murder.
The court also instructed on both direct aiding and abetting
liability, and the natural and probable consequences doctrine,
with assault and battery identified as the target offenses. While
deliberating, the jury asked the following questions: “Does each
defendant have to touch [Houston] for battery to apply?”; “Does
aiding and abetting as to assault and battery apply to our
understanding of [Instruction No.] 960 [battery]?”; “Can you
provide clarification as to natural and probable consequences in
[Instruction No.] 403 [natural probable consequences]. Example
please? Definition for ‘probable.’ Definition of ‘natural.’ ”
The jury found the defendants not guilty of first degree
murder. It found each defendant guilty of second degree murder
but found the associated gang enhancement not true. The trial

12
court sentenced Lockett to a total prison term of 15 years to life.
Henderson was sentenced to a total prison term of 30 years to
life, plus 5 years. The court sentenced Sullivan to a total prison
term of 17 years to life.
Petitions for Resentencing
In 2019, Petitioners Lockett and Henderson sought
resentencing under section 1170.95, asserting they could not now
be convicted of murder because they were convicted under the
natural and probable consequences doctrine. The People opposed
on the grounds SB 1437 was unconstitutional, and Petitioners
were ineligible for resentencing because they were major
participants in the underlying felony who acted with reckless
indifference to human life or they personally acted with malice
aforethought.
The trial court found Petitioners had made a prima facie
showing they were eligible for relief and appointed counsel to
represent them. After further briefing from the parties, the trial
court issued an order to show cause why relief should not be
granted and set an evidentiary hearing.
At the August 2, 2019 hearing, the prosecutor indicated he
intended to rely solely on the record of conviction to meet his
burden of proof to show Petitioners were ineligible for
resentencing. Petitioners did not seek to admit any new evidence
to supplement the record of conviction. The trial court
questioned whether the acquittal of the first degree murder
charge affected the court’s evaluation of express malice. The
prosecution asserted the jury’s finding had no effect because
“the trial court can look at all the evidence, and the trial court
can make an independent decision, which is what the law says, if
this is an express malice case.” Lockett’s counsel argued the

13
jury’s previous finding established “the prosecutor had not proven
beyond a reasonable doubt that this was premeditated murder or
that it involved express malice.” Henderson’s counsel further
argued, “The jury clearly rejected the first degree theory in this
case. If they want to find first degree, there’s plenty of evidence
that they could have done it, and they rejected all that evidence.
And what is left is a situation where our clients came back and
got into a fight, that the People’s theory is that they got into a
fight as a distraction for an unknown shooter. [¶] There was no
reason to have to get into a fight. There’s no relationship
between the fight and what happened with the shooter because
the fight was actually meaningless in terms of what happened
with the shooting. They didn’t have to start a fight, a distraction,
for a shooting to happen[]. [The] shooting could have happened
anyway.” The court took the matter under submission.
The court subsequently denied the petitions in a
memorandum of decision. It summarized its conclusions as
follows:
“1. This court held a hearing to determine whether 1) the
Petitioners are entitled to relief where prosecution bears
the burden of proof to prove beyond a reasonable doubt that
the petitioner is ineligible for resentencing (§ 1170.95,
subd. (d)(3) and [(2)]) to determine if Penal Code section
1170.95 is constitutional.
“2. The jury convicted Petitioners of 2nd degree murder
under either the theory of aiding and abetting or the theory
of natural and probable consequences. Because jurors are
not required to disclose the theory under which they convict
the defendant of murder or make any such special findings
nor are they even required to agree on the theory of

14
 conviction and in this case, the prosecution proceeded
under both theories, it is not clear under which theory the
jury convicted the Petitioners.
“3. This court finds that the Petitioners could be convicted
of murder beyond a reasonable doubt under the law after
January 1, 2019, under the theory that while the
Petitioners were not the actual killers, they were principals
who had the intent to kill and who aided and abetted the
commission of the murder of Brandon Houston.
“4. Because this court finds that the Petitioners are
not entitled to relie[f] under S.B. 1437, it elects not to
make any findings as to the constitutionality of S.B.
1437.”
The court then set forth a recitation of the facts of the underlying
crime and the criminal proceedings against Petitioners as well as
a summary of SB 1437. In its discussion of the case, it stated:
“After review of the entire court file, pleadings and
arguments of counsel, this court finds that the prosecution has
established beyond a reasonable doubt that all three Petitioners
are guilty of second degree murder under the theory that while
the Petitioners were not the actual killer, they each were
principals who aided and abetted the commission of the
murder . . . there was ‘plenty of evidence,’ to convict these
defendants on first degree murder and the court agrees that [at]
a minimum there is sufficient evidence to convict on second
degree murder under aiding and abetting, and furthermore,
sufficient evidence to convict on first degree murder as a
principal under the aiding and abetting theory.”
“The record reflects that the prosecution sought the
petitioner’s murder conviction based on multiple theories,

15
including first and second degree murder under both a direct
aiding and abetting theory as well as natural and probable
consequence theory, with assault and battery identified as the
target offenses. Since the jury need not disclose its theory of
liability or even agree on any particular theory, neither of the
parties are able to show the actual basis of the petitioner’s
conviction. While questions about natural and probable
consequence was discussed, there is no credible evidence to aid
the court in determining what theory any particular juror relied
upon in making its decision, if they were unanimous in their
theory or there was a split in their decision as to the theory upon
which they convicted each Petitioner. Nevertheless, it is the
burden of the prosecution to show, beyond a reasonable doubt,
that the petitioner is guilty of murder under the law effective
January 1, 2019.”
“For the petitioner to be eligible for relief, it must be shown
that ‘[t]he petitioner could not be convicted of first or second
degree murder because of the changes to Section 188 or 189 made
effective January 1, 2019’ (§ 1170.95, subd. (a)(3)[]) and this court
finds that the Petitioners have not met this burden. In this case,
when Petitioner Sullivan said he had to call someone because of
the issue with 190, the person called was the actual killer Cedric
Burton; Petitioner Lockett drove because they all knew there was
a gun in the car and they wanted no problems if they were pulled
over by police; and the shooter hid during the brawl because they
all had a plan to distract the group allowing the killer to walk up
and execute the victim. Specifically, the killer would only know
the defendants had a ‘beef’ with Houston if the defendants had
told him which is evidence of a discussion prior to their arrival at
the scene and all had devised a plan to isolate the victim and kill

16
him. Also, the killer was wearing gang colors, hid when the
others approached the victim and his group, and the killer did not
get involved in the street fight. The killer waited until he could
sneak into the crowd and kill Houston as planned. The reason
the Petitioners return with the killer to kill the victim was
because the group felt disrespected and, in accordance with gang
culture, they needed to make a statement by killing the victim.”
“This court finds that there is sufficient evidence to prove
beyond a reasonable doubt that each Petitioner conspired with
the actual killer Cedric Burton to kill the victim in this case, that
they were principals in the murder, shared the intent to kill, and
aided and abetted the actual killer in the murder. For the
foregoing reasons, all three Petitioners[’] request to be
resentenced under Penal Code section 1170.95 is Denied.”
Petitioners timely appealed.
DISCUSSION
Petitioners challenge the trial court’s order on several
grounds: (1) the trial court erred by conducting a trial de novo
and disregarding the jury’s verdict and finding in violation of
collateral estoppel; (2) the trial court applied the wrong standard
of proof in resolving the petition; and (3) the evidence was
insufficient to support the trial court’s finding they acted with the
intent to kill and directly aided and abetted the murder. We
conclude reversal is warranted on the ground of insufficiency of
the evidence. Having reached this conclusion, we need not
address Petitioners’ other grounds for error.
I. Penal Code Section 1170.95
SB 1437, which became effective on January 1, 2019,
amended the felony murder rule and the natural and probable
consequences doctrine to ensure that murder liability is not

17
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); see People v. Martinez
(2019) 31 Cal.App.5th 719, 722–723.) It did so by amending
sections 188 and 189 and by adding section 1170.95, which
provides a procedure by which those convicted of murder can seek
retroactive relief if the changes in law would affect their
previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Under section 1170.95, subdivision (a) a defendant may
petition for resentencing if he or she was “convicted of felony
murder or murder under a natural and probable consequences
theory” and the following conditions are met: “(1) A charging
document 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 or second degree murder
following trial or an accepted plea; and (3) The petitioner could
‘not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189’ made by Senate Bill No. 1437.
(§ 1170.95, subd. (a).)” (People v. Lewis (2020) 43 Cal.App.5th
1128, 1135–1136 (Lewis), review granted Mar. 18, 2020,
S260598.)
Section 1170.95, subdivision (c) sets forth the procedure
once the defendant files a complete petition: “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the

18
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. 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.”
“Within 60 days after the order to show cause has issued,
the court shall hold a hearing to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the
petitioner had not been previously been sentenced, provided that
the new sentence, if any, is not greater than the initial sentence.
This deadline may be extended for good cause.” (§ 1170.95, subd.
(d)(1).)
“At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. If the prosecution fails to sustain its
burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (§ 1170.95, subd. (d)(3).)
“If petitioner is entitled to relief pursuant to this section,
murder was charged generically, and the target offense was not
charged, the petitioner’s conviction shall be redesignated as the
target offense or underlying felony for resentencing purposes.
Any applicable statute of limitations shall not be a bar to the
court’s redesignation of the offense for this purpose.” (§ 1170.95,
subd. (e).)

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 “A person who is resentenced pursuant to this section shall
be given credit for time served. The judge may order the
petitioner to be subject to parole supervision for up to three years
following the completion of the sentence.” (§ 1170.95, subd. (g).)
II. Standard of Review
We employ the substantial evidence standard of review
when considering a trial court’s factual findings made in
connection with its section 1170.95, subdivision (d)
determination. (People v. Clements (2021) 60 Cal.App.5th 597,
618, review granted April 28, 2021, S267624.) “When considering
a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence — that is, evidence that is reasonable, credible, and of
solid value — from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Lindberg
(2008) 45 Cal.4th 1, 27.)
The substantial evidence standard is the same whether the
evidence is direct or circumstantial. (People v. Whisenhunt (2008)
44 Cal.4th 174, 200.) “Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th
115, 126.) “A reasonable inference may not be based on suspicion
alone, or on imagination, speculation, supposition, surmise,
conjecture, or guesswork; a finding of fact must be an inference
drawn from evidence rather than a mere speculation as to
probabilities without evidence. [Citations.]” (People v. Rekte
(2015) 232 Cal.App.4th 1237, 1247.) This is because suspicion is
not evidence, it merely raises a possibility, and this is not a
sufficient basis for an inference of fact. (People v. Redmond

20
(1969) 71 Cal.2d 745, 755.) Moreover, we must determine
whether the evidence of each of the essential elements of the
crime is substantial; it is not enough for the respondent to simply
point to “some” evidence supporting the finding. (People v.
Bassett (1968) 69 Cal.2d 122, 138.)
“Whether a particular inference can be drawn from the
evidence is a question of law.” (People v. Austin (1994) 23
Cal.App.4th 1596, 1604, disapproved on other grounds by People
v. Palmer (2001) 24 Cal.4th 856, 864.) Although all reasonable
inferences must be drawn in support of the judgment, we “may
not ‘go beyond inference and into the realm of speculation in
order to find support for a judgment. A finding . . . which is
merely the product of conjecture and surmise may not be
affirmed.’ ” (People v. Memro (1985) 38 Cal.3d 658, 695
disapproved on other grounds by People v. Gaines (2009) 46
Cal.4th 172, 181.)
“ ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ ”
(People v. Bean (1988) 46 Cal.3d 919, 933.) We may reverse for
lack of substantial evidence only if “ ‘upon no hypothesis
whatever is there sufficient substantial evidence to support’ ” the
trial court’s finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Finally, the sufficiency of the evidence must be assessed in
light of the prosecution’s theory of conviction in the trial court.
(Cole v. Arkansas (1948) 333 U.S. 196.) In order to conform to
due process of law, “[defendants are] entitled to have the validity
of their convictions appraised on consideration of the case as it
was tried and as the issues were determined in the trial court.”

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(Id. at pp. 201–202; see also People v. Smith (2005) 37 Cal.4th
733, 740.)
III. Second Degree Murder
“[S]econd degree murder . . . is ‘the unlawful killing of a
human being with malice aforethought but without the
additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree
murder.’ [Citation.] Malice may be either express (as when a
defendant manifests a deliberate intention to take away the life
of a fellow creature) or implied. [Citation.] ‘Malice is implied
when the killing is proximately caused by “ ‘an act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’ ” [Citation.]’ ” (People v. Cravens (2012) 53
Cal.4th 500, 507.)
Criminal liability extends to “[a]ll persons concerned in the
commission of a crime,” and all those who “aid and abet in its
commission.” (§ 31.) Guilt as a direct aider and abettor to second
degree murder requires: (1) knowledge of the direct perpetrator’s
intent to commit the crime; (2) intent to assist in committing the
crime; and (3) conduct that in fact assists in committing the
crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
SB 1437 did not alter the law regarding the criminal
liability of direct aiders and abettors to murder because such
persons necessarily “ ‘know and share the murderous intent of
the actual perpetrator.’ ” (Lewis, supra, 43 Cal.App.5th at p.
1135.) Thus, “relief must be denied if the People establish, either
based on the record of conviction or through new or additional
evidence, that the defendant personally acted with malice.”

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(People v. Lopez (2019) 38 Cal.App.5th 1087, 1114, review
granted Nov. 13, 2019, S258175.)
IV. The Evidence Was Insufficient to Support the Trial
Court’s Finding of Malice
The trial court concluded “that each Petitioner conspired
with the actual killer Cedric Burton to kill the victim in this case,
that they were principals in the murder, shared the intent to kill
the victim, and aided and abetted the actual killer in the
murder.” Based on the trial court’s conclusions, our task is to
determine whether substantial evidence supports the trial court’s
conclusions: (1) that Lockett and Henderson separately knew
Burton intended to kill; (2) that Lockett and Henderson shared
Burton’s intent to kill; and (3) that Lockett and Henderson, by act
or advice, aided, promoted, encouraged, or instigated the
commission of the murder. (CALCRIM No. 401.) Based on our
review of the record, substantial evidence does not support the
trial court’s conclusions on the required elements for aiding and
abetting a second degree murder.
All parties acknowledge there was no direct evidence
Petitioners knew of or shared the killer’s criminal intent or
conspired with him to kill Houston. Rather, the trial court drew
inferences from the circumstantial evidence that: (1) the person
Sullivan called from the SUV was the actual killer; (2) Petitioners
knew there was a gun in the car; (3) they all had a plan to
distract the group with a brawl while the killer hid and waited to
shoot Houston; (4) the killer targeted Houston because
Petitioners told him they had a “beef” with Houston; (5) the
killing was gang-related because the killer wore gang colors; and
(6) they had a motive to kill Houston because they felt

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disrespected and, in accordance with gang culture, they needed to
make a statement by killing him.
The trial court inferred Sullivan called the actual killer
solely from Sullivan’s statement that he had to call “one of my
homies” to report the issue with 190. The record shows two
additional men, Wilson and Burton, accompanied the Petitioners
and Sullivan back to meet up with Houston and his group. The
inference that Sullivan called Burton and not Wilson, even if
reasonable, does not further establish an additional and
necessary inference that both Lockett and Henderson shared in
Burton’s intent to kill Houston.
The trial court next drew the inference that because
Lockett (who had a valid California driver’s license) drove back
instead of Henderson, the Petitioners knew there was a gun in
the SUV. A reasonable inference may be made that Lockett, who
was the only one with a valid driver’s license, drove back to
Houston’s neighborhood because Petitioners “wanted no problems
if they were pulled over by the police.” While the fact that
Petitioners did not want problems with the police may
reasonably support the additional inference they knew there was
a gun in the SUV, it does not support two further inferences:
they knew the shooter intended to kill Houston with that gun and
they shared that intent with him.
Next, the trial court concluded Petitioners had a plan to
distract Houston’s group with a brawl to allow the shooter to
walk up and execute the victim. The People presented no
reasonable theory to explain why Petitioners needed to distract
Houston and his group so the killer “could sneak into the crowd
and kill Houston as planned.” There simply is no rational

24
inference that the Petitioners engaged in the brawl as a ruse to
allow Burton the chance to sneak in for the kill.
Likewise, the evidence does not support the trial court’s
inference the killer targeted Houston because Petitioners told
him they had a “beef” with Houston. Instead, the evidence
showed Coulter claimed an affiliation with 190 when Sullivan
asked Houston, “Where you from?” Sullivan later stated he “had
love” for Houston, Moore, and their son. Moreover, Henderson’s
altercation was with D.S., Houston’s nephew. Coulter stepped
between them to stop them from fighting and indicated that if
Henderson had a problem with D.S., he had a problem with her.
Houston, on the other hand, disclaimed any gang affiliation and
told Sullivan he only had a problem with “you guys coming to my
mom’s house being disrespectful.” He did not interfere in
Henderson’s argument with D.S.
There is also no evidence to support the fifth and sixth
inferences, both of which infer the crime was gang related.
Specifically, the court relied on evidence the killer was a gang
member because he wore gang colors and Petitioners had a
motive to kill Houston because they felt disrespected and, in
accordance with gang culture, they needed to make a statement
by killing him. While the color of Burton’s clothing may support
an inference he was a gang member, there is a gap in logic to
conclude the Petitioners, i.e., Lockett and Henderson, felt
disrespected and needed to retaliate against Houston by killing
him. The record does not support a finding Petitioners, who are
not gang members, would be motivated to kill Houston, who was
also not a gang member. Instead, the record shows Henderson
was upset at D.S. and wanted to fight D.S., not Houston.

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 “Somewhere along the evidentiary spectrum, a rational
inference loses its character if one or more of the premises upon
which it rests, fails. When this happens, the inference becomes
irrational speculation.” (People v. Bohana (2000) 84 Cal.App.4th
360, 369.) Here, the trial court’s conclusions that Lockett and
Henderson (1) knew Burton intended to kill Houston,
(2) entertained an intent to kill Houston, and (3) took action to
assist Burton kill Houston, was speculative. As such, the trial
court’s conclusions are not supported by substantial evidence.
DISPOSITION
The order denying Petitioners relief under section 1170.95
is reversed. The matter is remanded to the trial court with
directions to grant Henderson’s and Lockett’s petitions for
resentencing and resentence them in accordance with section
1170.95. Thereafter, a copy of the court’s order and an amended
abstract of judgment should be sent to the Department of
Corrections and Rehabilitation. Further, the court should report
a resentencing under SB 1437 to the Department of Justice as
required by section 13151.

OHTA, J. *
We Concur:

STRATTON, Acting P. J. WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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