Filed 4/30/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


 THE PEOPLE,                          B296139

         Plaintiff and Respondent,    (Los Angeles County
                                      Super. Ct. No. VA092410)
         v.

 DANA OFFLEY et al.,

         Defendants and Appellants.


      APPEAL from an order of the Superior Court of
Los Angeles County, John A. Torribio, Judge. Reversed.
      Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant Dana Offley.
      Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant Robert Mitchell Keller.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
       Defendants and appellants Dana Offley and Robert
Mitchell Keller challenge the trial court’s denial of their petitions
under Penal Code section 1170.951 for resentencing on their
murder convictions. The trial court found that both defendants
were ineligible for relief because they had received sentence
enhancements under section 12022.53, subdivision (d) for
intentionally discharging a firearm and proximately causing
the victim’s death. We hold that an enhancement under
section 12022.53, subdivision (d) does not in itself preclude a
petitioner from obtaining relief under section 1170.95. For this
reason, we reverse the denial of Offley’s petition. In Keller’s case,
the trial court misinterpreted the record. Keller’s enhancement
was based on section 12022.53, subdivision (e)(1)—the jury found
that a principal to the crime, not Keller himself, discharged a
firearm. This enhancement does not disqualify Keller from relief
and likewise requires reversal.

              FACTS AND PROCEEDINGS BELOW
       Offley and Keller were two of five defendants charged
with taking part in a gang-related shooting in 2006 in which
one victim, Alex Barrales, was killed, and another, Pedro Portillo,
was seriously wounded. Evidence at trial indicated that
members of the 76 East Coast Crips gang ambushed a vehicle
driving through their territory, believing that the vehicle’s
occupants were members of a rival gang. At least three
individuals fired shots into the vehicle. Prosecutors charged
both Offley and Keller with one count of murder, one count
of attempted murder, and one count of firing into an occupied


      1   Subsequent statutory references are to the Penal Code.




                                  2
vehicle. They alleged that Offley personally and intentionally
fired a handgun, proximately causing the death of Barrales.
       At the end of the trial, the jury received an instruction
regarding the natural and probable consequences doctrine in
cases of conspiracy, as follows: “A member of a conspiracy is
not only guilty of the particular crime that to his knowledge
his confederates agreed to and did commit, but is also liable
for the natural and probable consequences of any crime of
a co-conspirator to further the object of the conspiracy, even
though that crime was not intended as a part of the agreed upon
objective and even though he was not present at the time of the
commission of that crime.”
       A jury convicted both Offley and Keller of: (1) one
count of murder (§ 187, subd. (a)); (2) one count of attempted
murder (§§ 187, subd. (a), 664); and (3) one count of shooting
at an occupied motor vehicle (§ 246). The jury found that both
defendants committed the crimes for the benefit of a criminal
street gang. (§ 186.22, subd. (b)(1)(C).) The defendants’
convictions differed in two respects. First, the jury convicted
Offley of second degree murder, and Keller of first degree murder.
Second, the jury found that Offley personally and intentionally
discharged a firearm, proximately causing great bodily injury and
death to the victim. (§ 12022.53, subd. (d).) The jury also found
firearm enhancements true with respect to Keller, but found that
a principal to the crimes, not specifically Keller himself, fired the
weapon. (§ 12022.53, subds. (d) & (e)(1).) The trial court imposed
an aggregate sentence of 80 years to life to Offley, and life with
the possibility of parole plus an additional 75 years to life to
Keller.




                                 3
       Both defendants appealed. Offley challenged the firearm
enhancement on his murder conviction, contending that there
was insufficient evidence to prove that he personally discharged
a firearm causing the victim’s death. Keller challenged the
imposition of a gang enhancement that was erroneously listed
in his abstract of judgment. This court agreed with Keller and
amended his judgment accordingly. (People v. Keller (Nov. 25,
2008, B199617) [nonpub. opn.] (Keller), pp. 3–6.) This court
affirmed the judgment as to Offley, stating that “[w]e need not
decide whether there was sufficient evidence that Offley
personally and intentionally discharged a firearm proximately
causing the death of ” the victim because “under the sentencing
scheme for crimes using guns and committed for the benefit of
a criminal street gang, the Penal Code required the trial judge
to enhance Offley’s sentence by 25 years to life regardless of
whether he personally discharged a firearm proximately causing
death so long as a principal discharged a firearm proximately
causing death.” (Id. at p. 3.)
       In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, with only
one exception not relevant here, amended section 188 to require
proof of personal malice aforethought in all murder convictions.
(See § 188, subd. (a)(3).)2 The effect of the new law was to
eliminate liability for murder under the natural and probable
consequences doctrine. (People v. Lopez (2019) 38 Cal.App.5th
1087, 1092-1093, review granted Nov. 13, 2019, S258175 (Lopez).)


      2 The sole exception is in cases of felony murder, where the
new law also established more strict standards of liability. (See
§ 189, subd. (e).)




                                4
The legislation also enacted section 1170.95, which establishes
a procedure for vacating murder convictions for defendants who
could not have been convicted of murder under the new law and
resentencing those who were so convicted. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
       In January 2019, both defendants filed petitions in the
trial court for resentencing under section 1170.95. They both
filed form declarations that included the information required
by section 1170.95, subdivision (b)(1). Defendants also requested
the court to appoint counsel to represent them. Both defendants
also filed separate declarations explaining why they believed
they were entitled to relief. Keller claimed that “there was no
evidence presented that [he] was the actual killer. No witness
testified that they saw [him] fire a weapon.” Offley also claimed
that he did not kill the victim. He cited portions of the trial
transcript in his case in which the prosecutor agreed that a bullet
from Offley’s gun could not have killed Barrales.
       The trial court denied both defendants’ petitions without
appointing counsel or holding a hearing. According to the court,
the defendants were ineligible for relief because the record
showed that the jury found they intentionally fired a weapon at
the victim and caused great bodily injury or death.

                         DISCUSSION
       Defendants contend that the trial court erred by denying
their petitions for resentencing under section 1170.95. Offley
argues that the trial court erred in determining that he was
ineligible for resentencing because his sentence was enhanced
under section 12022.53, subdivision (d) for personally and
intentionally discharging a firearm and proximately causing
great bodily injury and death. Keller contends that the trial




                                 5
court erred because his firearm enhancement was based on the
jury’s finding that a principal to the crime, not Keller himself,
fired a weapon and caused great bodily injury and death. We
reverse the trial court’s denial of both defendants’ petitions
because both Offley and Keller made a prima facie case that
they fell within the provisions of section 1170.95.

      A.    Senate Bill No. 1437 and Section 1170.95
        Murder has long been defined as “the unlawful killing of
a human being . . . with malice aforethought.” (§ 187, subd. (a).)
“Malice aforethought may be express or implied. (§ 188.)
‘Express malice is an intent to kill. . . . Malice is implied
when a person willfully does an act, the natural and probable
consequences of which are dangerous to human life, and the
person knowingly acts with conscious disregard for the danger
to life that the act poses.’ ” (People v. Beltran (2013) 56 Cal.4th
935, 941–942 (Beltran).)
        Prior to the enactment of Senate Bill No. 1437, however,
a defendant who aided and abetted a crime that ended in a
victim’s death could be convicted of murder under the natural
and probable consequences doctrine even if the defendant
personally did not act with malice aforethought. The natural
and probable consequences doctrine provides that “ ‘[a] person
who knowingly aids and abets criminal conduct is guilty of not
only the intended crime [target offense] but also of any other
crime the perpetrator actually commits [nontarget offense] that
is a natural and probable consequence of the intended crime.’ ”
(People v. Medina (2009) 46 Cal.4th 913, 920.) “ ‘By its very
nature, aider and abettor culpability under the natural and
probable consequences doctrine is not premised upon the
intention of the aider and abettor to commit the nontarget




                                 6
offense because the nontarget offense was not intended at all.
It imposes vicarious liability for any offense committed by the
direct perpetrator that is a natural and probable consequence of
the target offense.’ ” (People v. Chiu (2014) 59 Cal.4th 155, 164
(Chiu).)3
       Senate Bill No. 1437 was enacted to abolish this doctrine
in cases of murder. It amended section 188 to require that, when
the felony murder rule does not apply, a principal in the crime of
murder “shall act with malice aforethought,” and that “[m]alice
shall not be imputed to a person based solely on his or her
participation in a crime.” (Stats. 2018, ch. 1015, § 2, p. 6675;
In re R.G. (2019) 35 Cal.App.5th 141, 144.)4 As a result, the
natural and probable consequences doctrine can no longer
support a murder conviction. (Lopez, supra, 38 Cal.App.5th at
p. 1103 & fn. 9; Stats. 2018, ch. 1015, § 1(f), p. 6674.) The change
did not, however, alter the law regarding the criminal liability
of direct aiders and abettors of murder because such persons
necessarily “know and share the murderous intent of the actual
perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see


      3  In Chiu, our Supreme Court abrogated the use of the
natural and probable consequences doctrine to prove first degree
premeditated murder, but it did not change the law regarding its
application to second degree murder. (Chiu, supra, 59 Cal.4th at
p. 166.)
      4 The new law also amended section 189 by adding a
requirement to the felony-murder rule that a defendant who
was not the actual killer or a direct aider and abettor must have
been a major participant in the underlying felony and acted with
reckless indifference to human life. (Stats. 2018, ch. 1015, § 3,
p. 6675.) This aspect of the new law is not relevant here.




                                 7
Chiu, supra, 59 Cal.4th at p. 167 [a direct aider and abettor
“acts with the mens rea required for first degree murder”].) One
who directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable
under the old law.
       Senate Bill No. 1437 also added section 1170.95, which
permits a person convicted of murder under a natural and
probable consequences theory to petition the court to have the
murder conviction vacated and to be resentenced. (§ 1170.95,
subds. (a) & (e); Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
Thus, section 1170.95, subdivision (a) provides that a person
convicted of felony murder or murder under a natural and
probable consequences theory may petition the trial court to
have his or her murder conviction vacated and be resentenced
on any remaining counts if 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 a 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).)
       Section 1170.95, subdivision (c) sets forth the trial court’s
responsibilities upon the filing of 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




                                 8
service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served. . . .
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.”
(§ 1170.95, subd. (c).)
       As we recently explained in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598
(Lewis), section 1170.95, subdivision (c) creates a two-step
process for determining a defendant’s eligibility.5 First, the
trial court must determine whether the defendant has made
a “prima facie showing [that he] ‘fall[s] within the provisions’
of the statute.” (Lewis, supra, 43 Cal.App.5th at p. 1140.)
The trial court may examine the record of conviction (id. at
pp. 1137–1138), and may not reject a defendant’s petition
unless it determines that “the petitioner is ineligible for relief
as a matter of law.” (People v. Verdugo (2020) 44 Cal.App.5th
320, 329, review granted Mar. 18, 2020, S260493 (Verdugo).)
Only after the court concludes that the defendant satisfies this
requirement does “the trial court’s duty to appoint counsel . . .
arise.” (Lewis, supra, 43 Cal.App.5th at p. 1140; accord, People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410; Verdugo, supra, 44 Cal.App.5th at pp. 332–333.)
If a defendant’s petition survives both stages of review under


      5 For the reasons we explained in Lewis, supra,
43 Cal.App.5th at pp. 1139–1140, we reject Offley’s contention
that there is only a single stage of prima facie review under
section 1170.95, and that the trial court is required to appoint
counsel in all cases in which a defendant files a petition
containing all the information required by section 1170.95,
subdivision (b)(1).




                                 9
section 1170.95, subdivision (c), the trial court must issue an
order to show cause and hold a hearing to determine whether to
grant the petition and resentence the defendant. (See § 1170.95,
subd. (d); Lewis, supra, 43 Cal.App.5th at p. 1136.)

      B.    The Trial Court Erred by Denying Defendants’
            Petitions at the First Stage of Prima Facie
            Review
       The trial court summarily denied both defendants’ petitions
at the first stage of review under section 1170.95, subdivision (c),
on the ground that the jury found that both defendants
personally fired a weapon and proximately caused great bodily
injury or death. The court appears to have concluded that
both defendants received sentence enhancements pursuant
to section 12022.53, subdivision (d). That subdivision provides
that “any person who, in the commission of a [specified]
felony . . . personally and intentionally discharges a firearm
and proximately causes great bodily injury, . . . or death, to
any person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 25 years to life.”6
       We reverse the denial of Offley’s petition because an
enhancement under section 12022.53, subdivision (d) does not
establish as a matter of law that a defendant acted with malice
aforethought. It is therefore insufficient on its own to justify
denying a defendant’s petition under section 1170.95 at the


      6 The defendants’ information specified that the
enhancement under section 12022.53, subdivision (d) applied
to the shooting of Barrales, who was killed, and did not merely
suffer great bodily injury.




                                10
first stage of review. (See Verdugo, supra, 44 Cal.App.5th at
pp. 329–330.) We reverse the denial of Keller’s petition because
the trial court misinterpreted the record. Keller’s enhancement
was under section 12022.53, subdivision (e)(1) and showed only
that a principal to the crime, not Keller himself, fired a weapon
and caused the victim’s death.

            1.    An enhancement under section 12022.53,
                  subdivision (d) does not preclude relief
                  under section 1170.95
       The trial court erred by denying Offley’s petition because
the existence of an enhancement under section 12022.53,
subdivision (d) does not show that a defendant acted with malice
aforethought. It therefore does not establish as a matter of law
that Offley could still be convicted of murder under the new law
and is ineligible for relief under section 1170.95.7
       Both express and implied malice require proof of the
defendant’s mental state. In the case of express malice, the
defendant must have intended to kill. (Beltran, supra, 56 Cal.4th
at p. 941.) Implied malice also involves a mental component,
namely a “ ‘conscious disregard for the danger to life that the


      7 Offley contends that the trial court erred by relying on
the enhancement as a basis for rejecting his petition because,
in the direct appeal of his conviction, this court did not rule
on his challenge to the sufficiency of the evidence supporting
the enhancement. This court stated that “[w]e need not decide
whether there was sufficient evidence that Offley personally and
intentionally discharged a firearm proximately causing the death
of Barrales.” (Keller, supra, B199617, p. 3.) Because we hold
that the enhancement does not disqualify Offley from relief, this
argument is moot.




                                11
[defendant’s] act poses.’ ” (Id. at pp. 941–942.) This requires
“ ‘examining the defendant’s subjective mental state to see
if he or she actually appreciated the risk of his or her actions.’
[Citation.] ‘It is not enough that a reasonable person would
have been aware of the risk.’ ” (People v. Jimenez (2015)
242 Cal.App.4th 1337, 1358.)
       Section 12022.53, subdivision (d) provides that the
defendant must have intended to discharge a firearm, but does
not refer to an “intent to achieve any additional consequence.”
(People v. Lucero (2016) 246 Cal.App.4th 750, 759.) It is
thus a general intent enhancement, and does not require the
prosecution to prove that the defendant harbored a particular
mental state as to the victim’s injury or death. (Id. at
pp. 759-760; In re Tameka C. (2000) 22 Cal.4th 190, 198.)
The jury in this case was instructed accordingly. The trial
court told the jury that it would need to decide “whether the
defendant intentionally and personally discharged a firearm
and proximately caused great bodily injury or death,” but not
whether he intended to kill or was aware of the danger to life
that his act posed.
       Because an enhancement under section 12022.53,
subdivision (d) does not require that the defendant acted either
with the intent to kill or with conscious disregard to life, it does
not establish that the defendant acted with malice aforethought.
Of course, the trial court may look beyond the abstract of
judgment and consider the entire record of conviction, including
any prior Court of Appeal opinions in the case, in determining
whether a petitioner has made a prima facie case of eligibility.
(Lewis, supra, 43 Cal.App.5th at p. 1136 & fn. 7.) In many
instances, additional information from the record will establish




                                 12
that a defendant’s conviction was not based on the natural
and probable consequences doctrine, and that the jury must
have convicted the defendant on the basis of his own malice
aforethought. For example, if the jury did not receive an
instruction on the natural and probable consequences doctrine,
the jury could not have convicted the defendant on that basis,
and the petition should be summarily denied.
       In this case, however, we cannot rule out the possibility
that the jury relied on the natural and probable consequences
doctrine in convicting Offley. The trial court instructed the jury
on the natural and probable consequences doctrine as part of
its instruction on conspiracy liability: “A member of a conspiracy
is not only guilty of the particular crime that to his knowledge
his confederates agreed to and did commit, but is also liable
for the natural and probable consequences of any crime of
a co-conspirator to further the object of the conspiracy, even
though that crime was not intended as a part of the agreed upon
objective and even though he was not present at the time of the
commission of that crime.”
       The prosecutor argued that the jury could convict the
defendants on the basis of this instruction. In closing arguments,
the prosecutor argued that the defendants were part of a
conspiracy, that the “common design of [the] conspiracy” was
“assault with a firearm,” and that any member of the conspiracy
was “guilty of, not only that particular crime, but also the natural
and probable consequence of any crime of the co-conspirator.”
       We cannot exclude the possibility that the jury believed
Offley acted without intending to kill Barrales or consciously
disregarding that risk. The jury might have concluded that
Offley intended to take part in a conspiracy to commit assault




                                13
with a firearm, or to fire into an occupied vehicle, with the
aim of either injuring or merely frightening Barrales. The jury
could have then concluded that Barrales’s death was the natural
and probable consequence of the conspiracy and convicted him
of murder without finding beyond a reasonable doubt that he
acted with malice aforethought. For this reason, we cannot say
that Offley “is ineligible for relief as a matter of law.” (Verdugo,
supra, 44 Cal.App.5th at p. 329.)

            2.    Keller’s enhancement did not indicate
                  that he personally fired a weapon
       Keller’s enhancement was based on section 12022.53,
subdivision (e)(1). That subdivision applies the penalties of
section 12022.53, subdivisions (b) through (d) to all principals
of a crime regardless of whether or not they personally fired a
weapon, so long as the crime was committed for the benefit of
a criminal street gang (see § 186.22, subd. (b)), and a principal
to the crime discharged a firearm causing great injury or death.
The enhancement finding therefore shows only that a principal
to the crime proximately caused Barrales’s death. It does
not show that Keller played a direct role in killing the victim.
Furthermore, as we have seen, the jury received instructions
that would have allowed them to convict Keller on the basis
of the natural and probable consequences doctrine. We therefore
cannot determine as a matter of law that Keller acted with
malice aforethought in the killing of Barrales.8


      8 The trial in this case predated Chiu, in which our
Supreme Court held that a defendant could be convicted
of second degree murder, but not first degree murder, under




                                 14
      C.    Proceedings on Remand
       Because the trial court erred by denying the petitions at
the first stage of review under section 1170.95, subdivision (c),
we will remand the case with instructions to proceed to the
second stage of review under that subdivision. Thus, “the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner[s] 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[s] make[ ] a
prima facie showing that [they are] entitled to relief, the court
shall issue an order to show cause.” (§ 1170.95, subd. (c).)




the natural and probable consequences doctrine. (Chiu, supra,
59 Cal.4th at p. 166.) Consequently, we cannot rule out the
possibility that the jury relied on the natural and probable
consequences doctrine in convicting Keller of first degree murder.




                                15
                         DISPOSITION
      The trial court’s order is reversed, and the trial court
is ordered to appoint counsel to represent both appellants for
further proceedings under section 1170.95.
      CERTIFIED FOR PUBLICATION.




                                     ROTHSCHILD, P. J.
We concur:




                  BENDIX, J.




                  WEINGART, 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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