People v. Jackson CA2/1 ( 2024 )

Filed 1/18/24 P. v. Jackson CA2/1
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B317684
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A968974)
v.
LYNDELL TYRONE JACKSON
et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen A. Marcus, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant Lyndell Tyrone Jackson.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant Vincent Burks.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
This is an appeal from the denial of petitions for
resentencing relief under Penal Code section 1172.6.1 In 1988,
confederates of petitioners Lyndell Tyrone Jackson and
Vincent Burks shot Latonjyia Stover and Jamee Finney to
death.2 Respondent describes this case as “an apparent case of
mistaken identity” because Stover and Finney were not
connected to the drug dealer who cheated Jackson’s and Burks’s
confederates in the drug transaction that was the catalyst for the
murders.
In 1991, a jury convicted petitioners of, among other
crimes, one count of the first degree murder of Stover and found
true murder while kidnapping and multiple murder special
circumstances. The jury also convicted petitioners of one count of
the second degree murder of Finney. Petitioners sought
resentencing of both murder convictions after the Legislature
amended the definition of murder to eliminate the natural and
probable consequences doctrine, circumscribe those who could be
convicted of felony murder, and with the exception of felony
murder, prohibit a murder conviction based on imputed malice.
With respect to the first degree murder of Stover, the
resentencing court found both petitioners failed to establish a
prima facie case of eligibility for resentencing. We agree. As a
1 Undesignated statutory citations are to the Penal Code.
As explained in our Discussion, part A, post, section 1172.6
originally was numbered 1170.95. Except as necessary for
historical accuracy, we refer to the statute by its current number
of section 1172.6.
2 The resentencing court concluded petitioners were not
the actual shooters.
2
matter of law, the record of conviction shows that the jury found
true all elements of murder under current law.
With respect to the second degree murder conviction of
Finney, the resentencing court held an order to show cause
hearing (§ 1172.6, subd. (d)(3)) at which no party presented new
evidence. The resentencing court found the People had
demonstrated beyond a reasonable doubt that petitioners were
guilty of murder under the current definition of murder. We
agree. Petitioners’ argument that the resentencing court applied
the wrong standard of proof is not consistent with the record. We
also reject Burks’s challenge to the sufficiency of evidence
supporting the resentencing court’s conclusion that he aided and
abetted the Finney murder with intent to kill.
With respect to the Finney murder, Jackson does not
challenge the sufficiency of evidence to support the resentencing
court’s finding that he committed felony murder as defined by
current law. Instead, he argues that the resentencing court
could not rely on a felony murder theory based on kidnapping,
which was not a qualifying underlying felony when he was
convicted, without violating (1) the constitutional prohibition
against ex post facto application of the law and placing him in
double jeopardy, (2) his right to due process of law, and
(3) principles of collateral estoppel and law of the case. None of
these doctrines or constitutional prohibitions applies here
because a resentencing hearing is not a second prosecution but
instead, an occasion for lenity, and the resentencing court did not
relitigate his premeditated first degree murder acquittal.
In sum, we affirm the resentencing court’s order denying
Burks’s and Jackson’s petitions for resentencing.
3
BACKGROUND
1. Procedural background
In the appeal from the judgment of conviction,3 we
described the procedural background, which we now summarize.
Co-defendants Vincent Burks, Deautri Cosslolo Denard, Lyndell
Tyrone Jackson, Dayon Darren Lively, and John Jay Porter were
convicted “by jury of kidnapping for ransom with bodily harm
(count 1), first degree murder (count 9 [Stover]) and second
degree murder (count 10 [Finney]) with multiple murder and
murder while kidnapping special circumstances, shooting into an
inhabited dwelling (count 11), and assault with a firearm
(count 12, a lesser included crime of attempted murder).” (People
v. Denard et al. (Oct. 12, 1995, B066109) [nonpub. opn.] at p. 2.)
Before finding them guilty of the second degree murder of Finney,
the jury found Jackson, Burks, Denard, Porter, and Lively not
guilty of the first degree murder of Finney. The trial court
instructed the jury that the special circumstances applied only to
a first degree murder, and the jury found the murder while
kidnapping and multiple murder special circumstances true with
respect to the first degree murder of Stover.4 The jury also
convicted petitioners of kidnapping for ransom.
3 Section 1172.6, subdivision (d)(3) permits consideration
of “the procedural history of the case recited in any prior
appellate opinion.”
4 The jury did not convict another co-defendant, Meredith
Carter, of murder but only of false imprisonment. There were
other charged crimes, which we described in our prior appeal: “In
addition to the crimes described above, Burks, Denard, Jackson,
and Lively were tried for forcible oral copulation and 2 counts of
forcible rape, all in concert, of Ms. [Davis] in the apartment
4
2. Evidence at defendants’ 1991 trial
The trial record comprises more than 100 reporters’
transcripts. We summarize only the evidence relevant to the
issues on appeal.
a. Events preceding the shooting
The evidence showed that on May 9, 1988, Kelly Davis (also
known as Kelly Timmons) brokered a drug deal between her
friend John Porter and her former boyfriend Buford (“B.J.”)
Bates. Unbeknownst to Davis, Bates substituted flour for
cocaine. When Porter and co-defendant Denard learned of the
substitution, they forced Davis at gunpoint into the home of
Porter’s mother. Davis unsuccessfully tried to reach Bates, and
telephoned her brother, Roland Timmons, asking him to call
Bates. Denard told Timmons that Davis could not leave until
Bates returned the money from the cocaine purchase.
Denard called co-defendant Lively and reported what
happened with the drug deal. Lively came to the house where
Porter and Denard were holding Davis captive. Pointing a gun at
Davis, Denard forced her into a beige Jeep, which Lively, Denard,
(counts 2–4). The jury was unable to reach verdicts on
counts 2-4, which were dismissed. The jury acquitted Burks and
Denard of forcible oral copulation and rape of Ms. [Davis], in
concert, in the apartment (counts 5–6). The jury acquitted Lively
of forcibly raping Ms. [Davis] in the apartment (count 7). Before
instructions and argument, the prosecution dismissed count 8,
which charged all the defendants with conspiracy to commit
murder, but argued the case on an uncharged conspiracy theory.
The jury also acquitted the five male defendants of premeditated
attempted murder of Anthony Milner . . . (count 13.)” (People v.
Denard et al., supra, at p. 7.)
5
and Porter also entered. Burks already was seated in the Jeep.
Lively, Denard, Porter, and Burks transported Davis to an
apartment, and about 10 minutes later, Jackson arrived at the
apartment.
Denard asked Davis about B.J. Bates and his family, and
she told Denard where B.J. Bates lived and the type of vehicle he
drove. Davis also told Denard about Bates’s sister—Nina
Bates—and specifically that Nina drove a red Hyundai. Burks
and Jackson were present in the apartment when Davis
described B.J. and his sister Nina.
Porter and Burks left the apartment to purchase bullets
and the two returned with 10 to 15 boxes of bullets. They put the
boxes of bullets on the coffee table. Denard said that they should
try to “find B.J.” Then Burks, Porter, and Lively donned plastic
gloves, wiped their guns, and each loaded a gun with bullets.
Jackson did not have a gun. Lively said, “[A]ll about killing.
That’s right. We dangerous people. That’s right. Got to do what
we got to do to survive. That is our money. We got to go get our
money.” According to Davis, everyone agreed with Lively.
Denard passed out ski masks to Burks, Porter, and Lively,
and Denard put a mask in his pocket. Denard announced they
were going to find B.J. and “were going to kill him.” Lively said,
“[G]oing to get the sister. Kill the sister.” Burks, Porter, Denard,
and Lively left the apartment.
b. Events in the apartment after Burks, Porter,
Denard, and Lively leave
Prior to leaving, Denard asked Jackson and others at the
apartment (including co-defendant Carter) to guard Davis.
Jackson remained in the apartment. Jackson tied Davis’s hands
6
and feet together with a phone cord and put a paper bag over her
head while telling her that she was seeing too much.
When Davis attempted to get the attention of a person
outside the apartment through a window, Carter threw her to the
floor and kicked her. Jackson then grabbed Davis from the floor
and pushed her against a wall causing her to hit her head.
c. The shootings of Stover and Finney
Shortly before the shooting, Stover and Finney were
talking to a friend, who was outside, as Stover and Finney sat in
Stover’s red Pontiac LeMans. They noticed two Jeeps, one blue
and the other beige, traveling in one direction. The Jeeps were
traveling fast but slowed down, and the drivers of both Jeeps
looked at Stover and Finney. The drivers were wearing black
beanie caps, black jackets, and dark black glasses. Stover told
her friend to “get home and go in the house, somebody is about to
get gatted.” Stover and Finney then drove away. Two to three
minutes later, the blue Jeep passed the same spot traveling in
the opposite direction. The beige Jeep later followed.
After seeing the Jeeps pass the second time, Stover’s and
Finney’s friend heard gunshots. The gunshots lasted about 15 or
20 seconds and came from different guns. Stover and Finney
were seated in the red Pontiac at a stop sign. Their car was still
running after the shooting. An eyewitness saw a blue vehicle
skid away from the location of the shooting “real fast” followed by
another vehicle, which the eyewitness described as a yellow
Cadillac.
Another eyewitness observed the shooting from her home
and saw a tan Wagoneer at the scene of the shooting. She saw
the people inside the tan Wagoneer (which she also referred to as
7
a Jeep), who were wearing a black beanie, black glasses, and
black shirts.
Nina Bates also saw the blue and beige Jeeps before she
heard gunshots. The Jeeps were in Nina Bates’s neighborhood.
One Jeep was right behind the other. She saw the occupants of
the blue Jeep pull down ski masks. Nina was concerned and told
her friends, “[T]here was some people in the neighborhood.” Nina
observed both Jeeps drive past her another time. Nina testified
that her ex-boyfriend told her that he saw “the Jeeps that did it”
in referring to the “girls” who were dead.5
A detective collected shell casings from two different guns
at the scene of the shooting.
d. Events after the shooting
When Denard, Burks, Lively, and Porter returned to the
apartment where Jackson had been guarding Davis, Denard said,
“Oh, man, we shot them bitches. We got them bitches.” “We got
them bitches. We pumped the[m] full of lead.” Denard said that
the victims were in a red car. Denard referred to shooting Bates’s
sister. Burks called his mother and said, “Mama, you get out the
house, we fixin’ to go to jail, we just killed these two girls.”
Afterwards, Denard said, “[W]e were following them,
chasing them down St. Andrews, and we rammed them on the
side of the car up into the corner of the street . . . . [a]nd they
were hollering and screaming.” Denard continued: “And we
opened the . . . hatchback . . . and we just shot, we just came at
5 It appears that exhibits at trial showed Nina Bates’s
location when she saw the jeeps. These exhibits are not included
in the record before us. Nina Bates was not at the location of the
shooting when it occurred, but she went there later that day.
8
them, bam, we just got them all at one time.” Denard said that
the victims “were hollering and screaming and moving to the left
and moving to the right and jerking and trying to get away.”
Burks, Lively, Jackson, and Porter were present when Denard
made these statements. Burks, Porter, and Lively returned their
gloves to a plastic bag and put the bag in a closet.
Porter asked Jackson “what had happened” to Davis, and
Jackson said that Davis “tried to get away” and “[w]e had to fuck
her up.”
3. Instructions
a. Aiding and abetting
The court instructed the jury that “[a] person aids and
abets the commission or attempted commission of a crime when
he or she, [¶] (1) with knowledge of the unlawful purpose of the
perpetrator and [¶] (2) with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime, by act or
advice aids, promotes, encourages or instigates the commission of
the crime.”
The court instructed the jury on natural and probable
consequences as follows: “One who aids and abets is not only
guilty of the particular crime that to his or her knowledge his or
her confederates are contemplating committing, but he or she is
also liable for the natural and probable consequences of any
criminal act that he or she knowingly and intentionally aided and
abetted. You must determine whether the defendant is guilty of
the crime originally contemplated, and, if so, whether the crimes
charged were a natural and probable consequence of such
originally contemplated crime.”
9
The court further instructed the jury: “Merely assenting to
or aiding or assisting in the commission of a crime without
knowledge of the unlawful purpose of the perpetrator and
without the intent or purpose of committing, encouraging or
facilitating the commission of the crime is not criminal. Thus a
person who assents to, or aids, or assists in, the commission of a
crime without such knowledge and without such intent or
purpose is not an aider and abettor in the commission of such
crime.”
b. Conspiracy
The jury instruction on conspiracy provided in pertinent
part: “A conspiracy is an agreement between two or more
persons with the specific intent to agree to commit a public
offense, and with the further specific intent to commit such
offense, followed by an overt act . . . for the purpose of
accomplishing the object of the agreement. Conspiracy is a crime,
but is not charged as an offense in the information in this case.”
The court also instructed the jury: “A member of a conspiracy
is not only guilty of the particular crime that to his or her
knowledge his or her confederates are contemplating committing,
but is also liable for the natural and probable consequences of
any act of a co-conspirator to further the object of the conspiracy,
even though such act was not intended as a part of the original
plan and even though he or she was not present at the time of the
commission of such act.”
c. Murder
The court instructed that murder requires proof of the
following elements: “1. A human being was killed. [¶] 2. The
killing was unlawful, and [¶] 3. The killing was done with
10
malice aforethought.” The court instructed the jury on express
and implied malice.
For first degree murder, the jury was instructed on
deliberate and premeditated murder.
With respect to second degree murder, the court instructed
the jury on “unpremeditated murder of the second degree,”
“second degree murder [based on a] killing resulting from [an]
unlawful act dangerous to life,” second degree murder based on a
conspiracy “to commit a felony inherently dangerous to human
life,” and second degree felony murder based on several
underlying felonies including kidnapping. (Boldface &
capitalization omitted.)
d. Special circumstances
The jury was instructed on three special circumstances—
murder for financial gain, murder while kidnapping or
kidnapping for ransom, and multiple murder convictions. By way
of introduction to these special circumstances, the court
instructed the jury: “If you find a defendant in this case guilty of
murder of the first degree, you must then determine if one or
more of the following special circumstances are true or not true:
[¶] 1. The murder was committed for financial gain; [¶] 2. The
murder was committed while the defendant was engaged in the
commission of the crime of Kidnapping for Ransom or
Kidnapping; and [¶] 3. Multiple murder convictions.”
The introductory instruction also provided: “If you find
that a defendant was not the actual killer of a human being, or if
you are unable to decide whether the defendant was the actual
killer or an aider and abettor or co-conspirator, you cannot find
the special circumstance to be true as to that defendant unless
you are satisfied beyond a reasonable doubt that such defendant
11
with the intent to kill aided and abetted, any actor in the
commission of the murder in the first degree.” The court further
instructed the jury that the jury “must decide separately each
special circumstance alleged in this case as to each defendant”
and “must agree unanimously.” Thus, the multiple murder
special circumstance and murder while kidnapping special
circumstance instructions required the jury to find the defendant
was either the “actual killer” or “with the intent to kill, aided and
abetted any actor in the commission of murder in the first
degree.”
4. Appeal from the judgment of conviction
We affirmed petitioners’ judgments of conviction. (People v.
Denard, supra, B066109.) Rejecting petitioners’ arguments to
the contrary, we concluded sufficient evidence supported the
jury’s verdict that the murders occurred while defendants were
engaged in kidnapping for ransom. (Id. at p. 11.) We held
substantial evidence supported the kidnapping murder special
circumstance. (Id. at p. 12.)
We rejected Jackson’s argument that “because the other
four male defendants did not announce they were going to kill
Nina Bates as they left the apartment,” he could not be liable for
Stover’s first degree murder. (People v. Denard, supra, B066109,
at p. 14.) We explained: Defendants “repeatedly threatened to
kill Ms. [Davis], Bates, Bates’ sister Nina, other Bates family
members, Timmons [also known as Davis], and Timmons’ [also
known as Davis’s] relatives. They announced upon their return
that they had killed Nina Bates, although not by name. They
made clear they would carry out their threats unless their
demands were met. Substantial evidence supports the inference
12
that Jackson shared these intents and his first degree murder
conviction.” (Ibid.)
5. Jackson and Burks petition for resentencing
and the resentencing court denies their petitions
On January 14, 2019, Jackson filed a resentencing petition
pursuant to former section 1170.95. On February 14, 2019,
Burks filed a resentencing petition also pursuant to former
section 1170.95. The judge hearing these petitions was not the
trial judge. The court appointed counsel for petitioners and
allowed briefing.
The resentencing court denied the petitions.6 With respect
to the Stover murder (count 9), the court found petitioners had
failed to make a prima facie showing of eligibility for
resentencing. Among other reasons, the court found the record of
conviction showed petitioner directly aided and abetted with
intent to kill.
With respect to the Finney murder (count 10), the
resentencing court conducted a hearing at which no party
presented new evidence. We now detail the court’s findings from
that hearing. “[E]ach of the defendants aided and abetted the
murder of the victim Jam[e]e Finney in their own individual
ways.” “The defendants repeatedly threatened to kill
Ms. Timmons [also known as Davis], Bates, Bates[’] sister, Nina,
[and] other Bates family members . . . .” “They announced upon
their return that they had killed Nina Bates, although not by
name. “[T]here was testimony that both Jeeps were in the area
6 Appellants contend the resentencing court applied the
wrong standard of proof in denying their petitions. We address
this argument in our Discussion, part B, post.
13
of the shooting where Stover and Finney were killed.” All four
men in the Jeeps were aiding and abetting. “They’re cutting off
the car. They’re chasing the car.” Denard sent Burks and Porter
to get ammunition. “[T]he reasonable inference is Burks and
Porter got ammunition so that they could kill Nina Bates and
members of her family.” Lively and Denard made statements
about killing in the presence of Burks and Jackson. The
resentencing court indicated that Burks aided and abetted by
purchasing the bullets. Prior to the killings, Denard announced
that they were going to kill Bates, and the four men including
Burks left the apartment armed. Among others, Burks called his
mother and told her to avoid retaliation because they had killed
Nina Bates.
The resentencing court noted the “weakest case is against
Jackson because he’s not one of the four people in the Jeeps
hunting Nina Bates. However, he is there when they made the
statements they’re going to retaliate against Bates. He is there
when the four armed defendants leave to carry out the mission,
and he aids and abets the mission by guarding Timmons [also
known as Davis]. It is the court’s finding that he did have an
intent to kill and that his role, although he was not present for
the shooting, it still makes him subject to second degree murder,
based on an aiding and abetting with the intent to kill.”
With respect to Jackson, the resentencing court further
explained: “Jackson stays behind in the apartment with
Ms. Carter to guard Kelly Timmons [also known as Davis], to
make sure she could not contact the police or her family or the
Bates family to warn them of the impending attack. This is
Jackson’s conduct that aids and abets the murder of Ms. Finney.
[¶] The plan to murder Nina Bates doesn’t work without Jackson
14
performing his role of watching and guarding Kelly Timmons
[also known as Davis]. In fact, at one point Kelly Timmons [also
known as Davis] tries to yell to somebody [on] the outside on the
street, and they beat her unmercifully at that time.” After the
shootings, the petitioners bragged about killing Nina Bates.
The resentencing court also found Jackson and Burks could
be convicted today of felony murder because they were major
participants and acted with reckless indifference to human life.
The court stated the defendants, including Burks and Jackson,
could be convicted of conspiracy to commit murder as well. The
court found petitioners were not the actual shooters; Denard and
Porter were the shooters.
Jackson and Burks appealed, and we issued an opinion
prior to our Supreme Court’s decision in People v. Curiel (2023)
15 Cal.5th 433 (Curiel). We later vacated our opinion to
reconsider the appeal in light of Curiel. We also allowed
supplemental briefing to give the parties an opportunity to
address Curiel.
DISCUSSION
A. The Resentencing Law
Prior to 2019, a jury could convict a defendant of murder
under the felony-murder rule and the natural and probable
consequences doctrine without finding malice. Under the felony-
murder rule as it existed before 2019, malice was imputed if the
defendant intended to commit the underlying qualifying felony.
(People v. Chun (2009) 45 Cal.4th 1172, 1184 [“ ‘The felony-
murder rule imputes the requisite malice for a murder conviction
to those who commit a homicide during the perpetration of a
felony inherently dangerous to human life.’ ”].) Under the
15
natural and probable consequences doctrine, as it existed before
2019, an aider and abettor could be held liable for any offense
that was the natural and probable consequence of the crime aided
and abetted. (People v. Chiu (2014) 59 Cal.4th 155, 158
[describing former law].)
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Stats. 2018, ch. 1015, §§ 2–4) modified the law
relating to accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a murder theory
(People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile)), and
more narrowly defining felony murder. (People v. Strong (2022)
13 Cal.5th 698, 703 (Strong); §§ 188, subd. (a)(3), 189, subd.
(e)(3)). With respect to the former modification, “to amend the
natural and probable consequences doctrine, Senate Bill 1437
added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except
[for felony-murder liability] as stated in subdivision (e) of Section
189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed
to a person based solely on his or her participation in a crime.’ ”
(Gentile, at pp. 842–843.)
Senate Bill No. 1437 also added former section 1170.95
providing the procedure for a defendant convicted of felony
murder or murder based on the natural and probable
consequences doctrine to request resentencing relief. (Gentile,
supra, 10 Cal.5th at p. 843.)
Effective January 1, 2022, Senate Bill No. 775 (2021–2022
Reg. Sess.) (Senate Bill No. 775) (Stats. 2021, ch. 551, § 2)
amended section 1170.95. In addition to convictions based on the
natural consequences and felony murder doctrines, persons
convicted on a “theory under which malice is imputed to a person
16
based solely on that person’s participation in a crime” are eligible
for resentencing relief. (§ 1172.6, subd. (a); see also former
§ 1170.95, subd. (a).) The bill clarified that persons convicted of
attempted murder or manslaughter also may petition for
resentencing. (People v. Whitson (2022) 79 Cal.App.5th 22, 30.)
It further clarified that the burden of proof applicable in the
evidentiary hearing is beyond a reasonable doubt. (People v.
Owens (2022) 78 Cal.App.5th 1015, 1020–1021.) The Legislature
then renumbered former section 1170.95 to section 1172.6
without substantive change. (Strong, supra, 13 Cal.5th at p. 708,
fn. 2, citing Stats. 2022, ch. 58, § 10.)
Section 1172.6 describes a multipart process for
resentencing petitions. The first step is making a prima facie
case for relief. “When the trial court receives a petition
containing the necessary declaration and other required
information, the court must evaluate the petition ‘to determine
whether the petitioner has made a prima facie case for relief.’
[Citation.] If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial
court may dismiss the petition.” (Strong, supra, 13 Cal.5th at
p. 708.) When evaluating a petition, the resentencing court may
consider the record of conviction. (People v. Lewis (2021)
11 Cal.5th 952, 972.)
If the petitioner makes a prima facie case for relief, the
court must issue an order to show cause. (§ 1172.6, subd. (c).) “If
there has been ‘a prior finding by a court or jury that the
petitioner did not act with reckless indifference to human life or
was not a major participant in the felony, the court shall vacate
the petitioner’s conviction and resentence the petitioner.’
[Citation.] Additionally, the parties may stipulate that the
17
petitioner is eligible for resentencing. [Citation.] Otherwise, the
court must hold an evidentiary hearing at which the prosecution
bears the burden of proving, ‘beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder’ under state
law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).)”
(Strong, supra, 13 Cal.5th at pp. 708–709.)
B. As a Matter of Law, Petitioners Are Ineligible for
Resentencing Relief for the First Degree Murder of
Stover
1. The requirements for a prima facie case
Pursuant to section 1172.6, subdivision (a), a petitioner
makes a prima facie case for resentencing when all of the
following conditions apply:
“(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, or attempted murder under the natural
and probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted
murder, or manslaughter following a trial or accepted a plea offer
in lieu of a trial at which the petitioner could have been convicted
of murder or attempted murder.
“(3) The petitioner could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.”
In Curiel, the Supreme Court held with respect to an aider
and abettor, a jury’s finding of intent to kill, by itself, does not
18
establish ineligibility for relief at the prima facie stage. (Curiel,
supra, 15 Cal.5th at p. 441.) “[A] petitioner who alleges that he
or she could not currently be convicted of a homicide offense
‘because of changes to Section 188 or 189 made effective
January 1, 2019’ (§ 1172.6, subd. (a)(3)) puts at issue all elements
of the offense under a valid theory.” (Curiel, at p. 462.) The
allegation “is not refuted by the record unless the record
conclusively establishes every element of the offense. If only one
element of the offense is established by the record, the petitioner
could still be correct that he or she could not currently be
convicted of the relevant offense based on the absence of other
elements.” (Id. at p. 463.)
“ ‘[U]nder direct aiding and abetting principles, an
accomplice is guilty of an offense perpetrated by another [e.g.,
murder] if the accomplice aids the commission of that offense
with “knowledge of the direct perpetrator’s unlawful intent and
[with] an intent to assist in achieving those unlawful
ends.” ’ [Citation.]” (Curiel, supra, 15 Cal.5th at p. 463.)
“Similarly, to be liable for murder under a theory of implied
malice, an aider and abettor must aid in the commission of a life-
endangering act, with ‘ “knowledge that the perpetrator intended
to commit the act, intent to aid the perpetrator in the commission
of the act, knowledge that the act is dangerous to human life, and
acting in conscious disregard for human life.” ’ [Citation.]” (Ibid.)
“ ‘Thus, proof of aider and abettor liability requires proof in
three distinct areas: (a) the direct perpetrator’s actus reus—a
crime committed by the direct perpetrator, (b) the aider and
abettor’s mens rea’—which here includes knowledge that the
direct perpetrator intends to commit the crime or life-
endangering act, ‘and (c) the aider and abettor’s actus reus—
19
conduct by the aider and abettor that in fact assists the
achievement of the crime.’ [Citation.]” (Curiel, supra, 15 Cal.5th
at p. 467.)
In Curiel, the court found the petitioner was not ineligible
for resentencing as a matter of law because, notwithstanding the
gang-murder special circumstance instruction in that case, the
jury did not find the mens rea that either (1) the aider and
abettor with knowledge of the unlawful purpose of the
perpetrator intended to commit or encourage or facilitate the
offense or (2) the aider and abettor with knowledge the
perpetrator intended to commit a life-endangering act, intended
to aid the perpetrator in the commission of that act, knowing the
act was dangerous to human life, and in conscious disregard for
human life.7 (Curiel, supra, 15 Cal.5th at p. 468.) Curiel
7 The gang murder special instruction in Curiel provided:
“ ‘To prove that this special circumstance is true, the People must
prove that: [1] the defendant intended to kill; [2] at the time of
the killing the defendant was a member in a criminal street gang;
and [3] the murder was carried out to further the activities of the
criminal street gang.’ ” (Curiel, supra, 15 Cal.5th at p. 447.) The
Curiel court also noted that the trial court instructed the jury:
“ ‘To prove that the defendant is guilty of murder under the
theory of aiding and abetting [based on] natural and probable
consequences, the People must prove beyond a reasonable doubt
that [1] the defendant is guilty of disturbing the peace or of
carrying a concealed firearm by a gang member; [2] during the
commission of the crime of disturbing the peace or of the crime of
carrying a concealed firearm by a gang member the crime of
murder was committed; and [3] under all the circumstances a
reasonable person in the defendant’s position would have known
that the commission of murder was a natural and probable
consequence of the commission of the crime of disturbing the
peace or of the crime of carrying a concealed firearm by a gang
20
cautioned that its holding was limited to the jury instructions
given in that specific case and “does not necessarily apply to
other cases where the jury found intent to kill, or even other
cases where the jury found true the gang-murder special
circumstance.” (Id. at p. 471.)
2. Petitioners cannot establish a prima facie case
because the jury’s true findings regarding the
murder special circumstances show, as a matter
of law, they were convicted under currently
valid murder law
We review de novo the legal question whether petitioners
are ineligible for relief as a matter of law. (People v. Lopez (2022)
78 Cal.App.5th 1, 14.)
As noted in Discussion, Part B.1, ante, to make a prima
facie case for relief, petitioners must show they “could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a)(3).) Here, the record of conviction shows as a
matter of law that petitioners were convicted of the Stover
murder under currently valid murder law.
The jury found true a kidnapping and multiple murder
special circumstance. These findings, along with the trial court’s
instructions, demonstrate that the jury found true all the Curiel
elements of aiding and abetting murder, that is, “ ‘a crime
committed by the direct perpetrator’ ” (the perpetrator’s actus
reus), “ ‘the aider and abettor’s mens rea,’ ” including
“ ‘knowledge that the direct perpetrator intends to commit the
member.’ ” (Id. at p. 446.) As detailed above, the instructions in
the case before us were different.
21
crime or life-endangering act,’ ” and “ ‘the aider and abettor’s
actus reus—conduct by the aider and abettor that in fact assists
the achievement of the crime.’ [Citation.]” (Curiel, supra,
15 Cal.5th at p. 467.)
Specifically, to find the multiple murder special
circumstance and murder while kidnapping special circumstance
allegations true, the trial court’s instructions required the jury to
find the petitioner “with the intent to kill, aided and abetted any
actor in the commission of the murder in the first degree.” (Italics
added.) The jury’s true finding on the special circumstances
satisfies the elements that Burks and Jackson intended to kill
Stover and aided and abetted the perpetrator in the murder of
Stover, not some other crime. Under the trial court’s
instructions, the jury’s true finding shows that the jury also
found Burks and Jackson had knowledge of the direct
perpetrator’s unlawful intent. The instructions and the jury’s
verdict further demonstrate that the jury found Burks and
Jackson had committed an act assisting in achievement of the
murder. Because the jury necessarily found all of the
requirements for murder under current law, Burks and Jackson
are ineligible for resentencing as a matter of law.
It is true the trial court instructed jury on the now invalid
natural and probable consequences doctrine when the court told
the jury: “One who aids and abets is not only guilty of the
particular crime that to his or her knowledge his or her
confederates are contemplating committing, but he or she is also
liable for the natural and probable consequences of any criminal
act that he or she knowingly and intentionally aided and
abetted.” As set forth above, the court’s aiding and abetting and
special circumstances instructions along with the jury’s verdict
22
demonstrate that the jury necessarily convicted Burks and
Jackson of aiding and abetting murder and not aiding and
abetting a crime whose natural and probable consequence was a
killing. We reject Jackson’s argument to the contrary.
Burks argues (with Jackson joining) that the second degree
felony murder instruction identified crimes supporting a felony
murder theory, and Burks hypothesizes the jury could have
imported those underlying crimes into the definitions of aiding
and abetting and natural and probable consequences.8 The
second degree felony murder instruction allowed the jury to
convict petitioners of second degree felony murder if they aided
and abetted certain underlying felonies. Here, however, the jury
did not convict petitioners of the second degree murder of Stover.
The jury convicted petitioners of the first degree murder of Stover
and no instruction permitted such a conviction based solely on
aiding and abetting an underlying felony. To convict Burks and
Jackson of the special circumstances, the jury was required to
find they aided and abetted the Stover murder, not some other
crime.
8 The second degree felony murder instruction provided:
“If a human being is killed by any one of several persons engaged
in the commission of the crime of Kidnapping for Ransom,
Kidnapping, or Shooting at an Inhabited Dwelling, felonies
inherently dangerous to human life, all persons, who either
directly and actively commit the act constituting such crime, or
who with knowledge of the unlawful purpose of the perpetrator of
the crime and with the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, aid,
promote, encourage, or instigate by act or advice its commission,
are guilty of murder of the second degree, whether the killing is
intentional, unintentional, or accidental.”
23
Although Burks argues, with Jackson joining, that the
resentencing court should have reconsidered its conclusion in
light of Senate Bill No. 775, which added convictions based on “a
theory of imputed malice” to bases for resentencing, we have
considered petitioners’ eligibility de novo, taking into account the
amended statute. Because petitioners are ineligible for relief
under the amended statute as well, there is no reason to remand
for further proceedings.
3. The trial court applied the correct standard of
proof at the section 1172.6, subdivision (d)(3)
hearing
Burks argues, with Jackson joining, that the court applied
the wrong standard of proof at the order to show cause hearing.9
The record belies his argument.
Section 1172.6, subdivision (d)(3) requires the prosecution
to prove “beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” It expressly rejects substantial evidence as the applicable
burden: “A finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1172.6, subd. (d)(3), italics added.)
Here, the record demonstrates the resentencing court,
acting as an independent factfinder, measured the evidence
9 There is no merit to respondent’s argument that the
issue is forfeited. The parties discussed the correct standard of
proof and the resentencing court explained that it was applying a
beyond-the-reasonable-doubt standard of proof.
24
against the beyond-a-reasonable-doubt standard to determine
whether petitioners were guilty of murder under current law.
The court stated, “I just wanted to put on the record that that is
the standard I am following, beyond a reasonable doubt, the
Rodriguez standard. It is clearly the right standard. There was
another standard that was discussed in Duke, and that has been
rejected.” The prosecutor responded that she agreed with the
standard and reminded the resentencing court that it had to
review the record independently.
Burks fastens on to the resentencing court’s reference to
“could be convicted” during the order to show cause hearing to
argue the court applied the wrong standard. He takes the court’s
use of that phrase out of context. For example, in responding to
counsel for Jackson’s argument that Jackson could not be
convicted of second degree felony murder, the court stated, “The
question is whether a valid murder theory exists today based on
the facts in the case that your client could be convicted . . . .” The
resentencing court stated, “[The] evidence in this particular case
is overwhelming that they could still be convicted, under any of
these theories, of Ms. Finney’s murder under current law.” The
court stated that all petitioners “could be convicted today of a
valid theory of murder . . . .” The court found that the petitioners
could be convicted of felony murder because felony murder now
includes kidnapping. In making these statements, the
resentencing court was merely considering murder theories
viable under current law, that is, theories of which petitioners
“could” still be convicted notwithstanding the changes to
sections 188 and 189.
The record unequivocally reflects that the resentencing
court applied the correct burden of proof and acted as an
25
independent factfinder. The resentencing court evaluated the
evidence and found it overwhelming. The court stated it was
basing its decision on “the evidence presented at trial.” The court
referred to the witnesses at trial and found Davis’s testimony
credible. The court comprehensively summarized the evidence as
presented at trial and highlighted the evidence the court believed
supported its findings. As if this were not enough, the court
stated it was applying a beyond-the-reasonable-doubt standard
and rejecting the different standard in People v. Duke (2020)
269 Cal.Rptr.3d 264 that in Senate Bill No. 775, the Legislature
also subsequently rejected. (See Discussion, part A, ante;
§ 1172.6, subd. (d)(3)).
Burks and Jackson again take the resentencing court’s
statements out of context in arguing that the court relied on facts
recited in our opinion on their direct appeal instead of acting as
an independent factfinder. Facts recited in an appellate opinion
are not admissible in a section 1172.6 subdivision (d)(3) hearing.
(People v. Vance (2023) 94 Cal.App.5th 706, 712–713.) The
resentencing court, however, did not rely on facts recited in our
prior opinion but instead, agreed with those facts in stating, the
“language” of the appellate opinion is the same as the facts the
court “read [in] the trial transcript.” The court expressly
indicated, the “appellate opinion” was not a “bible on what the
facts are . . . .” The fact that the trial court commented that its
view of the evidence was consistent with the facts recited in our
opinion does not demonstrate the court failed to act as an
independent factfinder.
Burks argues the resentencing court relied on cases that
are no longer good law, but he does not show the court relied on
any principle of law no longer valid. In applying the beyond-a-
26
reasonable-doubt standard of proof, the resentencing court cited
People v. Rodriguez (2020) 272 Cal.Rptr.3d 342, depublished on
December 22, 2021 (S266652) just before the order to show cause
hearing. That standard of proof remains correct notwithstanding
depublication of Rodriguez. (People v. Gonzalez, supra,
87 Cal.App.5th at p. 880.)
The resentencing court also relied on People v. Hernandez
(2021) 60 Cal.App.5th 94 (Hernandez) to conclude “the
kidnapping felony murder theory applies.” We acknowledge
Hernandez’s description of a two-part prima facie showing was
abrogated in People v. Lewis, supra, 11 Cal.5th at pp. 961–965.
We fail to discern what relevance Hernandez’s now defunct
holding has to the issues in this appeal and Burks provides no
cogent argument to the contrary.
C. Burks’ Challenge to the Sufficiency of the Evidence
To Support the Finding That He Aided and Abetted
Finney’s Murder Lacks Merit
Burks argues under current law, the prosecution failed to
prove beyond a reasonable doubt that he was guilty of Finney’s
murder. He contends no substantial evidence supports the
resentencing court’s finding he aided and abetted that murder
with intent to kill Nina Bates.
We review a resentencing court’s denial of a section 1172.6
petition after an order to show cause hearing for substantial
evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) Under
this standard, we review the record “ ‘ “ ‘in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
27
could find the defendant guilty beyond a reasonable doubt.’ ” ’
[Citation.]” (Ibid.)
“ ‘[U]nder direct aiding and abetting principles, an
accomplice is guilty of an offense perpetrated by another [e.g.,
murder] if the accomplice aids the commission of that offense
with “knowledge of the direct perpetrator’s unlawful intent and
[with] an intent to assist in achieving those unlawful ends.” ’
[Citation.]” (Curiel, supra, 15 Cal.5th at p. 463.) Burks correctly
identifies the following factors in determining whether a
defendant is an aider and abettor: presence at the scene of the
crime, companionship, and conduct before or after the offense.
(People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
The evidence showed that before the killings, Burks
purchased ammunition, cleaned off his gun, and armed himself.
Burks was present in the apartment when his confederates
discussed killing B.J. Bates and his sister Nina. Davis testified
that when Lively said, “All about killing. That’s right. We
dangerous people,” “everybody was kind of agreeing saying ‘that’s
right, that’s right. We got to go get our money back for our
people.’ ” Lively also said, “[G]oing to get the sister. Kill the
sister.” Denard specifically asked Davis questions about Bates’s
family including Nina. Davis provided details including that
Bates’s sister drove a red Hyundai.
Burks wore a ski mask and carried a loaded firearm as he
accompanied Denard, Lively, and Porter to the scene of the
shooting. Burks was with his confederates when they spotted
Stover’s red car, and then turned around and drove in the
opposite direction. One eyewitness placed Burks in the blue
Jeep. Another eyewitness saw the beige Jeep (which she thought
28
was tan) at the scene of the shooting. Regardless of which Jeep
he was in, Burks was present at the Finney shooting.
After killing Finney, Denard said the victims (Stover and
Finney) were in a red car. Denard also told co-defendant Carter
to move Denard’s mother because he shot B.J.’s sister and was
concerned about retaliation. Denard referred to Nina, stating,
“[W]e got that bitch. We pumped her full of lead.” Burks
confirmed his participation in the murder when he admitted to
his mother, “[W]e just killed these two girls.”
Burks’s attack on the sufficiency of the evidence does not
consider the evidence in the light most favorable to the
resentencing court’s order. He incorrectly states that “[n]o
witness placed Burks inside the blue Jeep.” He incorrectly states
that a reasonable trier of fact could not infer Burks agreed with
Lively’s statements about killing to get the drug money back
when Burks purchased bullets, loaded a gun, put on a ski mask,
and accompanied his confederates to the killing. Burks
incorrectly states that “no one said anything about killing Nina.”
Burks argues he did not have a motive to kill Nina, but there was
evidence that Burks and his co-defendants wanted to kill Nina to
exact revenge on her brother, B.J. Bates, for selling them flour
instead of cocaine. Burks minimizes his admission that “we
killed two girls” when he argues the admission does not show his
intent prior to the killing. Regardless of whether that statement
by itself shows his intent prior to the killing, Burks’s conduct
prior to the shootings supports the inference that Burks aided
and abetted the murder with intent to kill. Finally, Burks’s
statement that he did not aid and abet the killings ignores the
evidence that he purchased ammunition.
29
Because Burks demonstrates no error in the resentencing
court’s finding that he aided and abetted Finney’s murder with
intent to kill, we do not consider whether the trial court erred in
finding Burks was guilty of murder under a valid felony murder
or conspiracy theory.
D. Jackson Demonstrates No Error in the Resentencing
Court’s Finding That He Was Guilty of the Felony
Murder of Finney Under Current Law
Under current law, felony murder is a theory of first degree
murder. (§ 189, subd. (a).) Jackson does not challenge the
sufficiency of the evidence to support his murder conviction of
Finney under a felony murder theory. Instead, he argues,10 that
as a matter of law, the resentencing court could not rely on a
felony murder theory without violating (1) the constitutional
prohibitions against ex post facto application of the law and
placing him in double jeopardy, (2) his right to due process of law,
and (3) principles of collateral estoppel and law of the case. We
address these arguments seriatim.11
10 Jackson’s arguments as to felony murder are based on
arguments made by Burks, with the exception of the ex post facto
claim which Jackson makes in the first instance and Burks joins.
We need not consider these arguments in deciding Burks’s
petition because we have concluded that substantial evidence
supports the resentencing court’s finding that he aided and
abetted the murder of Finney.
11 Respondent argues Jackson forfeited these contentions
by not raising them in the resentencing court. Without deciding
that issue, we exercise our discretion to consider Jackson’s
contentions. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6
[an appellate court generally has discretion to consider
30
1. No ex post facto violation
Jackson contends the ex post facto clause of the federal and
California Constitutions (U.S. Const. art. I, § 10; Cal. Const.
art. I, § 9) precludes conviction of Finney’s murder on a felony
murder theory because kidnapping was not a qualifying
underlying felony for first degree felony murder in 1988, when
the killing occurred.
The ex post facto clauses in our state and federal
Constitutions prohibit “ ‘ “any statute [1] which punishes as a
crime an act previously committed, which was innocent when
done; [2] which makes more burdensome the punishment for a
crime, after its commission, or [3] which deprives one charged
with crime of any defense available according to law at the time
when the act was committed . . . .” ’ [Citation.]” (Tapia v.
Superior Court (1991) 53 Cal.3d 282, 294, quoting Collins v.
Youngblood (1990) 497 U.S. 37, 42.) The ex post facto clause of
the state Constitution is coextensive with its federal counterpart.
(Tapia, at pp. 295–296.)
“The standard for determining whether a law violates the
ex post facto clause has two components, ‘a law must be
retrospective—that is, “it must apply to events occurring before
its enactment”—and it “must disadvantage the offender affected
by it” . . . by altering the definition of criminal conduct or
increasing the punishment for the crime . . . .’ [Citation.]”
(People v. Delgado (2006) 140 Cal.App.4th 1157, 1164.) “A party
asserting an ex post facto claim has the ultimate burden of
unpreserved claims].) Additionally, Jackson’s counsel briefly
raised violation of ex post facto and double jeopardy principles at
the resentencing hearing.
31
establishing that the measure of the punishment itself has
changed.” (Id. at p. 1166.) Jackson does not disagree with these
principles.12
Jackson is correct only insofar as he argues that in 1988,
kidnapping was not included in section 189, which defined first
degree felony murder.13 At that time, murder during the course
of a kidnapping supported a second degree felony murder
conviction. People v. Pearch (1991) 229 Cal.App.3d 1282explained the former offense of second degree murder: “Second
degree felony murder is defined as: ‘A homicide that is a direct
causal result of the commission of a felony inherently dangerous
to human life (other than the . . . felonies enumerated in
Pen. Code, § 189) . . . .’ [Citation.]” (Pearch, at p. 1296.)
Kidnapping fell withing the definition of a felony inherently
dangerous to human life (id. at p. 1298), and the trial court here
12 Quoting People v. Smith (1983) 34 Cal.3d 251, 259,
Jackson describes an ex post facto law as follows: “[F]or a law to
be ex post facto ‘it must apply to events occurring before its
enactment, and it must disadvantage the offender affected by it.’
[Citation.] The latter phrase plainly includes any law that
punishes as criminal an act that was innocent when done, or
increases the punishment for a crime after it was committed.”
13 In 1988, section 189 provided: “All murder which is
perpetrated by means of a destructive device or explosive,
knowing use of ammunition designed primarily to penetrate
metal or armor, poison, lying in wait, torture, or by any other
kind of willful, deliberate, and premeditated killing, or which is
committed in the perpetration of, or attempt to perpetrate, arson,
rape, robbery, burglary, mayhem, or any act punishable under
Section 288, is murder of the first degree; and all other kinds of
murders are of the second degree.”
32
instructed the jury on second degree felony murder based on
kidnapping.14
Jackson’s conduct was thus not innocent when he
committed it; his conduct was inherently dangerous to human life
and when he was tried, it supported a second degree murder
conviction. As significant, a resentencing petition under
section 1172.6 cannot result in increasing Jackson’s punishment,
but only in decreasing his sentence had it been successful.
Jackson has thus failed to show a violation of the ex post facto
clauses in our state and federal Constitutions.
2. No double jeopardy violation
Jackson has also failed to demonstrate a violation of the
double jeopardy prohibition in the Fifth Amendment to the
United States Constitution and in Article I, section 15 of the
California Constitution. “ ‘At its core, the double jeopardy clause
“protect[s] an individual from being subjected to the hazards of
trial and possible conviction more than once for an alleged
offense.” [Citation.] The policy underlying the double jeopardy
protection “is that the State with all its resources and power
should not be allowed to make repeated attempts to convict an
individual . . . thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continuing state of
anxiety and insecurity.” [Citation.]’ [Citation.]” (People v.
Wilson (2023) 14 Cal.5th 839, 852.)
A defendant seeking resentencing is not being prosecuted
for an offense and thus, principles of double jeopardy do not apply
to section 1172.6 resentencing petitions. (People v. Mitchell
(2022) 81 Cal.App.5th 575, 589.) As Mitchell explains: “A
14 See footnote 8, ante.
33
petition under former section 1170.95 is . . . . is the opposite of a
criminal prosecution. A criminal prosecution can only hurt a
defendant and can never help. The process here is the reverse: it
can only help the defendant and can never hurt.” (Mitchell, at
p. 588; accord, Hernandez, supra, 60 Cal.App.5th at p. 111
[defendant petitioning for resentencing is not being placed in
jeopardy for an offense].) Resentencing is a voluntary process
commenced by a criminal defendant seeking a reduced sentence.
The resentencing court is not determining guilt but instead is
determining eligibility for resentencing. (People v. Njoku (2023)
95 Cal.App.5th 27, 45–46.) The resentencing court’s denial of
Jackson’s petition merely made him ineligible for a decreased
sentence; it did not place Jackson in jeopardy for any offense.
(Mitchell, at p. 589 [double jeopardy principles do not apply in
section 1172.6 proceedings.])
3. Doctrines of collateral estoppel and law of the
case do not benefit Jackson because no issue is
being relitigated
Adopting Burks’s argument, Jackson asserts the doctrine of
collateral estoppel “bars relitigation of previously determined
issues.” Jackson makes a similar claim with respect to the
doctrine of law of the case in stating that he was “acquitted” of
first degree murder and the second degree murder conviction was
affirmed on appeal and cannot be relitigated.
“The rule of collateral estoppel—‘embodied’ in the double
jeopardy clause and ‘extremely important’ to the criminal justice
system—requires ‘that when an issue of ultimate fact has once
been determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit.’ [Citation.]” (People v. Zavala (2008) 168 Cal.App.4th
34772, 776–777.) For collateral estoppel to apply, “ ‘ “First, the
issue sought to be precluded from relitigation must be identical to
that decided in a former proceeding. 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
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.’
[Citation.]” (Curiel, supra, 15 Cal.5th at pp. 451–552.)
Law of the case applies only when an appellate court has
issued a written opinion demonstrating a full consideration of the
issue on the merits and may be “declined” if “ ‘ “its application
will result in an unjust decision.” ’ [Citation.]” (People v.
Saucedo (1974) 42 Cal.App.3d 905, 907.)
We need not decide if collateral estoppel or law of the case
would apply to a section 1172.6 proceeding because Jackson
identifies no allegation the jury resolved in his favor that the
resentencing court relitigated. Jackson also identifies no issue
resolved in Jackson’s favor in the prior appeal that the
resentencing court relitigated.
Under the instructions given at Jackson’s trial, the only
theory of first degree murder proffered to the jury was murder by
premeditation and deliberation. The resentencing court noted
this, and Jackson emphasizes the resentencing “court’s
observation that premeditation and deliberation were absent in
relation to the Finney murder.” When it concluded that Jackson
was guilty of felony murder under current law, the resentencing
35
court did not rely on the theory of first degree murder that the
jury rejected, i.e., premeditation and deliberation.
Under current law, a defendant can be liable for felony
murder if the defendant was a “ ‘major participant[ ] in the
underlying felony and acted with reckless indifference to human
life . . . .’ [Citation.]” (Strong, supra, 13 Cal.5th at p. 708.)
Jackson identifies no element of felony murder under current law
on which the jury acquitted him or on which this court decided in
his favor in the appeal from the judgment of conviction.
People v. Cooper (2022) 77 Cal.App.5th 393 helps illustrate
this hole in Jackson’s argument. Cooper holds that a
resentencing court, which stands as a trier of fact at a
section 1172.6, subdivision (d)(3) hearing, cannot deny relief
based on a finding “inconsistent with a previous acquittal when
no [relevant] evidence other than that introduced at trial is
presented.” (Cooper, at p. 398.) At trial, the parties stipulated
Cooper was a felon. (Id. at pp. 397, 399.) The jury found Cooper
guilty of first degree murder and kidnapping but acquitted him of
being a felon in possession of a firearm. (Id. at pp. 397, 399.)
There was no new evidence at the resentencing hearing. In
supporting its finding that Cooper was guilty of felony murder,
the resentencing court found Cooper possessed and fired a gun.
(Id. at p. 398.) The appellate court reversed, concluding the
resentencing court erred in relying on a fact that necessarily
“ ‘turn[ed]’ ” a not-true enhancement finding “ ‘into [its]
opposite[ ].’ [Citations.]” (Id. at p. 413; see also People v. Henley
(2022) 85 Cal.App.5th 1003, 1019 [following Cooper].) Here,
Jackson identifies no finding that the resentencing court turned
into its opposite. The resentencing court did not rely on
premeditation and deliberation, the only theory of first degree
36
murder presented to the jury. Instead, the resentencing court
relied on felony murder under current law.
Finally, Jackson argues that the resentencing court erred
in relying on Hernandez, supra, 60 Cal.App.5th 94. We fail to
discern any such error. Hernandez supports the conclusion that
in considering a resentencing petition, the resentencing court
could find Jackson guilty of first degree felony murder under
current murder law even though he could be convicted only of
second degree murder at the time of his trial.
Hernandez considered whether under current law, the
People had to prove malice aforethought in the murder of a peace
officer. Hernandez concluded current murder law did not require
such a finding. (Hernandez, supra, 60 Cal.App.5th at p. 105.) It
also held the fact that on direct appeal and based on since
abrogated law, the appellate court reduced petitioner’s conviction
to second degree was “not relevant to the analysis.” (Id. at
p. 110.) In so concluding, Hernandez rejected defendant’s
challenge based on the doctrine of law of the case and the double
jeopardy clause. (Id. at pp.110–111.) It reasoned intervening
changes in the law precluded concluding the appellate court’s
prior opinion was law of the case (id. at pp. 110–111) and the
resentencing statute does not constitute a new prosecution but
instead, only provides an act of lenity that does not raise double
jeopardy concerns (id. at p. 111).
Similarly here, under current law, Jackson could be
convicted of first degree felony murder based on kidnapping.
Just as in Hernandez, the fact that kidnapping supported only a
second degree felony murder at the time Jackson committed his
offense is not relevant to whether he could be convicted of first
degree felony murder now.
37
4. Jackson fails to demonstrate a violation of his
right to due process
Jackson argues that “subjecting [him] to a second
proceeding at which the prosecution has the opportunity to
establish guilt for an offense of which [he] was acquitted at trial
violates the doctrine of fundamental fairness, as incorporated in
the due process clause of the federal and state Constitutions. It
is unfair to give the prosecution a second opportunity to prove an
allegation where it failed to carry its burden of proof during the
jury trial.”
Jackson’s argument is based on false premises. The People
did not subject Jackson to a second criminal prosecution.
Instead, Jackson filed a petition for resentencing seeking to take
advantage of a new definition of murder in the hope of reducing
his sentence. Although Jackson purports to challenge the
prosecution’s proof of an allegation that the prosecution
previously “failed to carry its burden of proof,” Jackson identifies
no allegation the jury found untrue. The jury did not acquit
Jackson of felony murder; it acquitted him of premeditated
murder—the only theory of first degree murder presented to the
jury. In short, Jackson fails to identify any allegation the
prosecution did not prove in the first trial that the prosecution
had a second opportunity to prove at the order to show cause
hearing.15
15 Given our holding that Jackson could be convicted of
first degree felony murder of Finney based on kidnapping, we
do not address his challenges to the resentencing court’s other
findings, i.e., aiding and abetting with intent to kill and
conspiracy as to Finney.
38
DISPOSITION
The order denying Lyndell Tyrone Jackson’s resentencing
petition is affirmed. The order denying Vincent Burks’s
resentencing petition is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
WEINGART, J.
39