Filed 1/24/19
            CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE


THE PEOPLE,                                B287255

       Plaintiff and Respondent,           (Los Angeles County
                                           Super. Ct. No. NA095527)
       v.

JOSE ANGEL MARTINEZ,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura Laesecke, Judge. Affirmed.
      Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Margaret E. Maxwell, Supervising Deputy





      Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, the opening paragraph, Part II.C, and the disposition
section of this opinion are certified for publication.
Attorney General, Thomas C. Hsieh, Deputy Attorney General,
for Plaintiff and Respondent.




                              2
       When Los Angeles County firefighters responded to a call of
an SUV on fire, they discovered a dead body in the back of the
burning vehicle. The body was identified as the late Christopher
Waters (Waters), and two high-school seniors, defendant and
appellant Jose Angel Martinez (defendant) and Adrian Berumen
(Berumen) were arrested and charged with Waters’ murder. A
jury found defendant guilty of first degree murder and arson.1 In
the unpublished portion of our opinion we decide two
instructional error claims defendant raises in his principal briefs
on appeal: (1) whether the trial court prejudicially erred in giving
the jury self-defense instructions based on pre-trial statements
defendant made to investigators even though, at trial, defendant
did not ask for self-defense instructions and did not assert, when
testifying, that he acted in self-defense; and (2) whether the trial
court should have given a lesser related offense instruction
absent the prosecution’s concurrence. In the published portion of
our opinion, we decide the issue defendant raises in supplemental
briefing, namely, whether on direct appeal he can avail himself of
the ameliorative benefits of Senate Bill 1437, which changes the
law on what mental state is required to be guilty of murder.

         [Parts I, II.A, and II.B, below, are deleted from
    publication. See post at p. 23 for where publication is to
                              resume.]




1
       The criminal proceedings against Berumen are not before
us in this appeal.




                                 3
                         I. BACKGROUND
      The Los Angeles County District Attorney charged
defendant with one count of murder, in violation of Penal Code
section 187, subdivision (a),2 and one count of arson of property of
another, in violation of section 451, subdivision (d). At trial on
these charges, the prosecution called more than twenty witnesses
and defendant put on a defense case—including testifying on his
own behalf. We summarize the key evidence pertinent to the
issues raised on appeal.

       A.   Events Leading Up to the Murder
       In April 2013, defendant was a senior in high school and
considered Berumen his best friend. Berumen did some work at
a screen printing shop called Top Hat Screen and Design. The
murder victim, Waters, had also done some t-shirt printing work
at the shop, including for Berumen.
       Two days before the murder, on April 21, 2013, Berumen
exchanged text messages and phone calls with Waters.3 The text
messages concerned an apartment Waters might want to lease.
Berumen and Waters made tentative plans to meet a couple days
later, on Tuesday, April 23. Toward the end of their exchange,
Berumen wrote, “I will hyu [hit you up] monday night to see
where we are at from there bruh.”



2
     Undesignated statutory references that follow are to the
Penal Code.
3
     A cell phone extraction report indicated Berumen
attempted to delete many of the text messages recovered from his
phone and introduced in evidence at trial.




                                 4
       Berumen continued to communicate with Waters the next
day, sending him a text message asking if he would want to see
“that apartment” on Tuesday. Later that night, Berumen sent a
text message to an individual identified as “Marcos Baby” in his
phone, saying, “[I]mma gank[4] that nigguh tommarow but I gotta
show him $50 for him to co[m]e.” That same night, Berumen was
also exchanging phone calls and text messages with defendant.
       In the morning on the day of the murder, April 23, 2013,
the owner of the Top Hat screen printing business saw Waters at
the shop packing up boxes for delivery. Waters then delivered a
t-shirt order to a customer. He was paid in cash and seemed
normal when he delivered the shirts. The customer sent Waters
a follow-up text message later in the day, but she never received
a response.
       Defendant and Berumen exchanged calls and text
messages that same morning. Cell phone location evidence
indicated defendant was in Long Beach, where Berumen resided,
by around 8 a.m. Berumen also exchanged text messages with
Waters, ending with a text at about 10:21 a.m. in which Berumen
told Waters, “Let me [know] when you[’re] out front.”
       Cell phone location evidence put defendant in San Pedro by
about 2:00 p.m. on April 23. Not long thereafter, Anne Albritton
(Albritton) was walking along First Street near her home when
she encountered two “young teen adults” walking “in a fast
manner.” Albritton stopped and spoke to the young men. The



4
      At trial, a Los Angeles County Sheriff’s Department
detective testified “gank” meant to rob or steal something from
someone.




                                5
larger and heavier of the two5 told her a car was on fire up the
street. When Albritton asked them if they had called 911, the
larger man said yes. He asked Albritton what city they were in,
and she told them they were in San Pedro. The larger boy
appeared “very amped up, pumped up, very animated and excited
and joyful.” The smaller and thinner boy remained silent. At
some point during their interaction, Albritton called 911.
      A taxi driver received a call for a pickup on First Street in
San Pedro at around 3:00 p.m. When he arrived, he could not
immediately locate the callers, but he was flagged down by two
young Hispanic men. The driver spoke to his passengers about
high school and their t-shirt business. Per their request, he
dropped them off in front of the Lakewood Mall. Security footage
from the mall showed defendant and Berumen at the location
from about 3:19 p.m. to 3:49 p.m. on April 23.

       B.    Law Enforcement Investigation and Waters’ Autopsy
       The Los Angeles County Fire Department responded to a
call regarding a vehicle fire at approximately 2:17 p.m. on April
23. When firefighters arrived at the scene, they found an SUV in
flames. The SUV was parked on a basketball court surrounded
by a chain link fence. After firefighters extinguished the fire,
they discovered a body, later identified as Waters, in the rear
cargo area of the vehicle and contacted the Sheriff’s Department.



5
      Albritton did not identify defendant or Berumen in court.
A law enforcement officer testified to defendant and Berumen’s
height and weight, indicating Berumen was taller and heavier
than defendant.




                                 6
       Los Angeles County Sheriff’s Department Lieutenant Scott
Hoglund responded to the scene and took charge of the
investigation. Viewing Waters’ body in the SUV, Hoglund saw
his ankles were bound and he was wrapped in a comforter. An
electric cord was wrapped tightly around his neck multiple times.
       As Waters’ body was being removed from the SUV, a
supervising criminalist with the Los Angeles County Coroner’s
Office and detectives on the scene removed items from the back of
the vehicle. In addition to fire debris, they discovered clothing
and a miniature wooden baseball bat. Some of the debris in the
car had an odor of ignitable liquid, which later testing revealed to
be gasoline. A deputy sheriff also found a sock, a matchbook, and
a license plate lying on the ground. The license plate, which was
discovered below the SUV’s rear bumper, indicated the vehicle
belonged to Waters.
       A medical examiner at the Los Angeles County Coroner’s
Office supervised the autopsy of Waters’ body. Waters had two
black eyes, a broken nose, a laceration of the left nostril
indicating blunt force to the area, swelling and bleeding of the
lips with multiple lacerations, and extensive bruising on the
forehead on both sides of the temple. The medical examiner
concluded the injuries were caused by moderately severe blunt
force, applied by multiple blows while Waters was still alive. The
examiner further concluded the blunt force trauma could have
been caused by a combination of hits by a small baseball bat and
fists. There were no other injuries or bruising to Waters’
stomach, back, or torso. There was no bruising on his arms,
forearms, hands, nor were there any injuries consistent with
defensive wounds. The ultimate cause of death was
strangulation, and Waters was dead before the fire started. An




                                 7
arson and bomb investigator for the Los Angeles Sheriff’s
Department reviewed the case and concluded it was a “body
dump,” meaning Waters had been killed elsewhere and
transported to the scene, where the vehicle and body were
torched with the use of gasoline and an open flame.
      Lieutenant Hoglund determined Berumen was a person of
interest in the investigation after obtaining Waters’ cell phone
data and speaking to a school resource officer at the high school
that both Berumen and defendant attended. Lieutenant Hoglund
sent a surveillance team to Berumen’s home. The next day,
Berumen went to the Long Beach police station and asked to
speak to investigators about Waters’ murder.
      Lieutenant Hoglund and Detective Adrian Garcia of the
Long Beach Police Department interviewed Berumen with his
mother present. Berumen did not have any visible injuries and
did not report any pain or otherwise indicate he had been injured.
After the interview, Lieutenant Hoglund obtained a warrant to
search Berumen’s home. Law enforcement officers executing the
search warrant discovered bloodstains in several areas of the
garage, which appeared to be used as a living quarters. A blood
sample collected at the scene was a probabilistic match to Waters’
DNA profile.

      C.     Identification and Interview of Defendant
      During his investigation, Lieutenant Hoglund obtained
surveillance footage from the Lakewood Mall. He took a still
frame from the footage and a photograph from a Facebook post to
the school resource officer at defendant’s high school. The
resource officer identified defendant as one of the two young men
in the photo. Lieutenant Hoglund then sent a surveillance team




                                8
to defendant’s home. They made contact with defendant and
asked if he would speak with Lieutenant Hoglund. Defendant
agreed.
       Lieutenant Hoglund and another detective interviewed
defendant at the police station. Defendant initially said he had
nothing to do with Waters’ death or the attack. Defendant did
acknowledge he stopped by Berumen’s home the morning of the
murder but he claimed he was only there a short while before
heading to school, where he stayed until about 1:40 p.m. When
asked why he had been at Lakewood Mall with Berumen the
afternoon of the murder, defendant said he went to the mall after
school and paid for certain items he purchased with $200
Berumen had given him the day before.
       The interviewing officers told defendant they knew he and
Berumen had been picked up by a taxi in San Pedro and dropped
off at the mall, and asked defendant to start from the beginning
and tell the truth. Defendant then related a significantly
different sequence of events. Defendant said he was at
Berumen’s house in the garage “listening to music[ and] watching
videos” when Waters arrived. Berumen owed Waters money for
some designs and did not have the money to pay him. At some
point after Waters arrived, Berumen went into the house.
Waters then “started going crazy” and “started trying to fight”
defendant. Berumen returned to the garage and he and
defendant “beat [Waters] up badly.”
       During the attack, defendant hit Waters with his fists.
Defendant kept beating Waters after he went down because he
did not want Waters to get back up and retaliate. Berumen put
an extension cord around Waters’ neck because he did not want
him to move. While they were cleaning the room after beating




                                9
Waters, defendant put a blanket over Waters’ face. Waters “was
unconscious” when defendant did so, and defendant “had a
feeling” Waters was dead.
      After beating Waters, defendant took a shower and put on
some of Berumen’s clothes. Defendant and Berumen decided to
burn Waters’ body because they did not know what to do, did not
want to get caught, and thought they would not be found if they
burned everything. Berumen and defendant picked up Waters,
put him in the back of his SUV, and covered him with the
blankets they used to clean the room. Defendant threw his soiled
clothes in the car as well.
      Berumen drove defendant around San Pedro with Waters’
body in the car. They stopped at a gas station to buy a gas can
and gas, and they continued driving until they arrived at the
basketball courts. They stopped because it looked like no one was
there and put gas inside and outside the car. Defendant walked
away and told Berumen to hurry up because cars were coming.
Berumen set the car on fire and the two walked down the street.
      Defendant told the interviewing officers that he and
Berumen encountered a woman while walking away from the
scene. She said hello and they tried to “play it off,” asking if she
had seen the fire. When asked if they had called 911, they said
yes. Defendant and Berumen continued walking, and then
Berumen called a cab and they went to the Lakewood mall.
Berumen gave defendant $200 out of approximately $1000 he had
taken from Waters. Defendant did not have any injuries other
than partially skinned knuckles.




                                10
       D.    The Defense Case
       Defendant testified at trial in his own defense; his
testimony diverged greatly from the account he related to
Lieutenant Hoglund.
       Defendant testified he was not required to attend school on
the day of the murder because he was a senior and the school was
conducting placement tests for other students. Defendant went
to Berumen’s home to hang out until the school day was over. He
did not know Waters was going to be at Berumen’s house until
that morning. Defendant knew Waters from the Top Hat shop
but did not know him well.
       When Waters arrived, everything seemed “regular,” and
the three talked about music and watched music videos. At some
point, Waters pulled out his wallet and started counting his
money. Defendant testified Berumen then suddenly grabbed a
bat and began hitting Waters in the face. Berumen kept hitting
Waters after he hit the ground, hitting him until the bat snapped
and Waters was unconscious. Defendant did not think Waters
could defend himself because the first hit caught him off guard.
When Berumen started hitting Waters, defendant got up and
backed up. He turned away at some point because there was a
lot of blood. Defendant “just got stuck” and did not know how to
react.
       Berumen started barking orders at defendant, telling him
to help clean up the blood. Defendant did as he was told and
helped Berumen clean. It did not occur to defendant to leave, and
defendant put a rag over Waters’ face while he was cleaning.
Waters was unconscious and defendant thought he was dead. As
defendant was cleaning, Berumen grabbed a cord and tied it
around Waters’ neck. Berumen then went out to Waters’ SUV




                               11
and backed it into the garage. They loaded Waters’ body into the
back and then each took a shower. Defendant borrowed clothes
from Berumen and put his clothes on top of Waters’ body.
      Berumen got into the driver’s seat, defendant got into the
passenger seat, and they drove off. Defendant did not direct
Berumen to go anywhere. Berumen got on a freeway and drove
for around thirty to forty-five minutes. They were not talking,
but when Berumen asked defendant if he was alright, defendant
said he was. Once they got off the freeway, they stopped at a gas
station and defendant bought a gas can and some gas with money
Berumen gave him because Berumen told him to do so.
Defendant was following Berumen’s orders because he seemed to
know what he was doing and defendant was scared.
      After defendant bought the gas, Berumen kept driving and
they eventually arrived at the location with the basketball courts.
Berumen started pouring gas on the engine. Defendant got out of
the SUV, and Berumen started pouring gas inside the vehicle.
By this time, defendant had reached his “breaking point” and told
Berumen he had to leave. Berumen lit the car on fire as
defendant was walking away.
      Defendant and Berumen encountered a woman while
walking away from the burning vehicle. Berumen called a cab
and they went to the Lakewood Mall so defendant could buy
clothes similar to what he was wearing earlier that day (he did
not want his father to realize he had gone somewhere other than
school). After defendant bought the clothes, he called a friend
who picked them up, dropped Berumen off at his house, and took
defendant home.
      When confronted with the statement he had given to
investigators at the police station, defendant testified he lied




                                12
during his police interview. He claimed he lied to the police
because he panicked, explaining he knew he had helped Berumen
with the body and the first thing he thought of was saying he had
been defending himself. So defendant told the detective that
Waters was trying to fight him and he and Berumen were both
hitting Waters in order to show he was trying to defend himself.
Defendant testified that, in truth, he never hit Waters, never
came into physical contact with Waters before putting him in the
truck, and never suffered any injury during the killing.
      Also testifying on defendant’s behalf was Danielle Sawyer,
one of his high school teachers. Sawyer testified she taught
defendant for his first three years of high school. She had no
knowledge of defendant being involved in any fights at school and
she believed he was a person who would avoid conflict if he could.

      E.     Jury Instructions
      Outside the presence of the jury, defense counsel asked the
court to instruct the jury on the lesser related (not lesser
included) offense of being an accessory after the fact based on
defendant’s testimony that he assisted in the cleanup and cover-
up but not the murder. The trial court declined, reasoning that
the crime of being an accessory after the fact was not a lesser
included offense and the jury could not come back with a finding
on that ground. Rather, it would need to find defendant either
guilty or not guilty of the charged crimes of murder and arson.
Defendant requested the court give the accessory instruction as a
separate count. The court again stated it could not give such an
instruction because it was not a lesser included offense. The trial
court asked the prosecution if it wanted to be heard on the issue,
and the response was “no.”




                                13
       As the court began instructing the jury on justifiable
homicide in self-defense, defense counsel interrupted and asked
to approach. Outside the hearing of the jury, defense counsel
asked the court to withdraw the self-defense instructions.
Counsel said the court might have a sua sponte duty to so
instruct the jury but emphasized defendant had disclaimed
having acted in self-defense during his trial testimony. The trial
court declined to withdraw the instructions on self-defense
principles, explaining: “[T]he reason I’m giving [the instruction]
is that the jurors have some decisions to make. [¶] They can find
that your client was truthful on the stand and not guilty of the
murder. They can find that your client was not truthful on the
stand, but they could believe the statement that he gave to the
detective that there was self-defense. [¶] Or they could find [the
prosecution’s] theory under a number of different theories. [¶] I
don’t think that I can withhold these instructions. I think I have
to give it because of the statement that was introduced that
would allow the jurors to come back with a self-defense verdict.”
The prosecutor agreed, stating he thought the instruction had to
be given based on what was in evidence.
       The trial court gave the jury self-defense instructions as
planned, including instructions on justifiable homicide and the
limits of the right of self-defense. During the prosecution’s
closing argument, the prosecutor argued defendant could not
have been acting in self-defense because Waters did not have any
wounds on his hands or any defensive wounds. During the
defense closing argument, counsel made no reference to
defendant having acted in self-defense. Instead, the defense
argument was that Berumen alone perpetrated the killing,
unbeknownst to defendant in advance, and all defendant did was




                               14
help Berumen cover it up—which was not enough to be guilty of
the murder itself.

      F.    Verdict and Sentencing
      The jury found defendant guilty of murder in the first
degree and arson of the property of another. The trial court
sentenced defendant to twenty-five years to life in prison on the
murder count. The court further imposed a high-term three-year
prison term for the arson conviction, comprising a total aggregate
sentence of twenty-eight years to life.

                          II. DISCUSSION
       Defendant argues the trial court erred by instructing the
jury on self-defense and by declining to give the jury instructions
on the lesser-related offense of being an accessory after the fact.
Although we can understand why the trial court thought it
should instruct on self-defense in light of defendant’s police
interview statements, it was error to give self-defense
instructions that defendant did not request and that were
contrary to his theory of the case at trial. The error, however,
was harmless because the self-defense instructions the court gave
did not contribute to the verdict obtained, particularly in light of
(a) other instructions given by the trial court that warned the
jury of the possibility that not all of the instructions were
necessarily applicable, and (b) the absence of any reference to
self-defense in the defense closing argument. As for defendant’s
contention that the court should have instructed on the lesser
related offense of being an accessory after the fact, the trial court
did not err when it declined to give such an instruction in the




                                 15
absence of the prosecution’s consent, as binding authority holds
(People v. Birks (1998) 19 Cal.4th 108 (Birks)).
       Defendant additionally argues he is now entitled to the
ameliorative benefits of the recently enacted Senate Bill 1437.
Senate Bill 1437 made statutory changes altering the definitions
of malice and first and second degree murder. The legislation
also established a procedure by which defendant and others who
have sustained a murder conviction that arguably rests on a
felony murder or a natural and probable consequences theory of
liability may petition the sentencing court to hear additional
evidence and, if appropriate, vacate the murder conviction if
inconsistent with now-governing law. Notwithstanding the
enactment of this procedure for retroactive relief, defendant
argues he should be able to avail himself of the ameliorative
benefits of Senate Bill 1437 on direct appeal. We hold to the
contrary, concluding the Legislature’s enactment of the
petitioning procedure evinces an intent to limit retroactive
application of Senate Bill 1437. Defendant may seek Senate Bill
1437 relief, but he must do so via the procedural avenue provided
by the legislation, which will permit the trial court to take
additional evidence that may bear on defendant’s liability for
murder.

      A.      The Self-Defense Instruction
      “‘“It is settled that in criminal cases, even in the absence of
a request, a trial court must instruct on general principles of law
relevant to the issues raised by the evidence”’ and ‘“necessary for
the jury’s understanding of the case.”’ [Citations.]” (People v.
Brooks (2017) 3 Cal.5th 1, 73 (Brooks).) “‘That obligation has
been held to include giving instructions on lesser included




                                 16
offenses when the evidence raises a question as to whether all of
the elements of the charged offense were present [citation], but
not when there is no evidence that the offense was less than that
charged. [Citations.] The obligation to instruct on lesser
included offenses exists even when as a matter of trial tactics a
defendant not only fails to request the instruction but expressly
objects to its being given. [Citations.]’” (People v. Breverman
(1998) 19 Cal.4th 142, 154-155 (Breverman).)
       Though a sua sponte instructional duty can also extend to
defenses, the duty there is more circumscribed. (See, e.g., People
v. Barton (1995) 12 Cal.4th 186, 197 [“requir[ing] trial courts to
ferret out all defenses that might possibly be shown by the
evidence, even when inconsistent with the defendant’s theory at
trial, would not only place an undue burden on the trial courts
but would also create a potential of prejudice to the defendant”];
People v. Sedeno (1974) 10 Cal.3d 703, 715-716, overruled in part
on other grounds.) A trial court only has a sua sponte duty to
instruct on a defense “‘if it appears . . . the defendant is relying on
such a defense, or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the
defendant’s theory of the case.’ [Citations.]” (Brooks, supra, 3
Cal.5th at p. 73; see also People v. Maury (2003) 30 Cal.4th 342,
424.) Where “the trial court believes ‘there is substantial
evidence that would support a defense inconsistent with that
advanced by a defendant, the court should ascertain from the
defendant whether he wishes instructions on the alternative
theory.’” (Breverman, supra, 19 Cal.4th at p. 157; see also People
v. De La Plane (1979) 88 Cal.App.3d 223, 248-249.) “[A] trial
court should not instruct the jury on an inconsistent affirmative




                                  17
defense over the defendant’s objection.” (People v. Jo (2017) 15
Cal.App.5th 1128, 1168 (Jo).)
       The record demonstrates defendant was not relying on self-
defense as a defense at trial. During his trial testimony,
defendant expressly disavowed a self-defense theory, stating he
lied to the detectives when he claimed he was acting in self-
defense because he was “scared.” In his view, he was minimally
involved in the murder—only as an accessory after the fact.
       The Attorney General sees the record differently,
contending self-defense was not inconsistent with defendant’s
theory of the case because it was “[defendant’s] own actions in
telling inconsistent versions of what had happened [that]
required him to acknowledge, if only inferentially, the existence
of facts which he otherwise denied at trial . . . .” The source of the
inconsistency at trial (between defendant’s statements to the
police and his trial testimony) is immaterial, however; it is the
existence of the inconsistency that is important. Defendant
elected to defend at trial by disavowing his statement to
investigators and by claiming he participated in the killing only
by helping to cover it up after the fact. Once he made that
election, the trial court had no sua sponte obligation to instruct
on self-defense and should have refrained from doing so when
defense counsel expressed (albeit rather belatedly) that he did
not want such instructions. (Breverman, supra, 19 Cal.4th at p.
157; see also Jo, supra, 15 Cal.App.5th at pp. 1168-1169.)
       Although we conclude the trial court erred in instructing on
self-defense over defendant’s objection, this is not the end of our
inquiry. We must also decide if the error was prejudicial. In
doing so, we examine the entire record, including the facts,




                                 18
instructions, and arguments of counsel. (People v. Guiton (1993)
4 Cal.4th 1116, 1130.)
       The parties disagree as to what standard governs our
prejudice inquiry. In reviewing cases involving a failure to
instruct on a sua sponte defense, our high court has assumed the
more rigorous Chapman v. California (1967) 386 U.S. 18
(Chapman) harmless beyond a reasonable doubt standard
applies. (E.g., People v. Salas (2006) 37 Cal.4th 967, 984.)
Assuming that Chapman standard applies in this case, we
conclude the inclusion of the instruction was harmless beyond a
reasonable doubt.
       “‘“In determining whether error has been committed in
giving or not giving jury instructions, we must consider the
instructions as a whole [and] assume that the jurors are
intelligent persons and capable of understanding and correlating
all jury instructions which are given.’” [Citation.]” (Jo, supra, 15
Cal.App.5th at p. 1172.) Here, the jury was instructed that “[t]he
purpose of the court’s instructions is to provide [the jury] with the
applicable law so that you may arrive at a just and lawful verdict.
Whether some instructions apply will depend upon what you [the
jury] find to be the facts.” Importantly, the jurors were also
instructed to “[d]isregard any instruction which applies to facts
determined by you not to exist” and “not [to] conclude that
because an instruction has been given [the court is] expressing an
opinion as to the facts.” Further, the jury was instructed that
“[n]o person may be convicted of a criminal offense unless there is
some proof of each element of the crime independent of any
confession or admission made by him outside of this trial.” “We
presume the jury understood and followed the court’s
instructions.” (People v. Jackson (2016) 1 Cal.5th 269, 352.)




                                 19
       Any juror inclined to credit defendant’s trial testimony
would have followed these instructions and simply disregarded
the court’s self-defense instructions, particularly since (1) the
defense did not rely on a self-defense theory in closing argument
(indeed, the defense made no reference to self-defense at all), and
(2) there was no evidence indicating Waters had sustained
injuries to any part of his body other than his face and head prior
to his death.
       Defendant, however, argues there are “legitimate reasons”
for suspecting the jurors might have disregarded the letter of the
instructions and condemned defendant’s behavior, even if they
did not believe the evidence demonstrated defendant had
committed murder. Essentially, defendant argues the jury would
have found his behavior in assisting with the attempted cover-up
so reprehensible that the jury would have convicted him of
murder even if it believed he did not participate in Waters’
murder. This is ungrounded speculation. We presume, and there
is no record-based reason to conclude otherwise, that the jury
followed CALJIC Nos. 2.90 and 8.10, the instructions requiring
them to find each element of the charged crime beyond a
reasonable doubt.
       The remainder of defendant’s efforts to establish prejudice
from any error in giving self-defense instructions are equally
unpersuasive. First, defendant argues the trial court’s
instructions on self-defense undermined his testimony and
defense at trial because they demonstrated the self-defense story
he told the police could not have been intentionally falsified; as
he argues it, the instructions revealed his self-defense story fell
woefully short of establishing the legal elements of self-defense.
The jury, however, did not need to believe defendant was a




                                20
criminal law scholar such that the story he told during his police
interview would actually have been sufficient to make out a self-
defense defense. To credit his trial testimony, the jury at most
needed to conclude that defendant believed his story would
establish a viable self-defense claim, and lied to the investigators
because of that belief. Second, defendant argues the jury would
have assumed defendant requested the self-defense instructions
even though no version of the facts shown by the evidence could
support it. Again, this is groundless speculation. Defendant did
not argue for self-defense at any point during the trial, and he in
fact disavowed his previous statement given to investigators.
There was no reason for the jury to assume he was the one who
asked the court to give self-defense instructions.

      B.     The Trial Court Did Not Err in Declining to Give a
             Lesser Related Offense Instruction
      “[A]ccessory after the fact is, as the court noted, a lesser
related offense to murder, not a lesser included offense.” (People
v. Mora and Rangel (2018) 5 Cal.5th 442, 486.) Our Supreme
Court has held a trial court is not obliged to instruct a jury on
lesser related offenses even if requested. (Birks, supra,19 Cal.4th
at pp. 112-113.) Indeed, it is not allowed to do so unless both the
prosecution and the defendant consent to the instruction. (Ibid.)
      Defendant seeks to avoid the binding force of Birks for
three reasons, none of which is persuasive.
      First, defendant contends the prosecution impliedly
consented to the requested instruction by not affirmatively
objecting to or opposing the request for the instruction. Nothing
in controlling case law, however, suggests some notion of implied
consent is sufficient to instruct on a lesser related offense.




                                 21
Rather, the discussion in Birks (which encompassed separation of
powers principles) is correctly read to hold that an instruction on
a nonincluded offense may be given only when the prosecution
affirmatively agrees (Birks, supra, 19 Cal.4th at pp. 132-136),
and here, there was no such agreement. In any event, the record
does not support the view that the prosecution impliedly
consented. After defense counsel requested the accessory after
the fact instruction, the trial court stated it could not give the
instruction because accessory after the fact was a lesser related,
not a lesser included, offense. It was only at that point that the
prosecution declined when asked if it wanted to be heard. With
rejection of the request for an accessory instruction already a fait
accompli, the prosecution’s silence is, if anything, an implied
objection to such an instruction, not implied consent.
       Second, defendant contends Birks’s policy arguments are
inapplicable in this case because the concern with fairness to the
prosecution had effectively been addressed by the time the
defense requested the instruction at issue. This argument fails
because Birks did not condition the application of its holding to
situations involving identical policy concerns.
       Third, defendant argues he had a federal constitutional
right to instruction on his theory because refusal of the
instruction implicated his rights to trial by jury and due process.
To the contrary, both the United States Supreme Court and our
Supreme Court have stated there is no constitutional obligation
to instruct on a lesser related offense. (Hopkins v. Reeves (1998)
524 U.S. 88, 97; Birks, supra, 19 Cal.4th at p. 124.)
       We decline defendant’s invitation to question Birks, which
is controlling law, and we need not address the remainder of his
arguments on this point.




                                22
     [The remainder of the opinion is to be published.]

       C.    Senate Bill 1437
       On September 30, 2018, while defendant’s appeal was
pending, the Governor signed Senate Bill 1437. The legislation,
which became effective on January 1, 2019, addresses certain
aspects of California law regarding felony murder and the
natural and probable consequences doctrine by amending
sections 188 and 189, as well as 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.)
Defendant requested the opportunity to submit supplemental
briefing on the effect of Senate Bill 1437 and we received
supplemental briefs from both sides.

             1.     Pertinent provisions
      Senate Bill 1437 was enacted to “amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill
1437 accomplishes this by amending section 188, which defines
malice, and section 189, which defines the degrees of murder, and
as now amended, addresses felony murder liability. Senate Bill
1437 also adds the aforementioned section 1170.95, which allows
those “convicted of felony murder or murder under a natural and




                                23
probable consequences theory . . . [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any
remaining counts . . . .” (§ 1170.95, subd. (a).)
       An offender may file a petition under section 1170.95 where
all three of the following conditions are met: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner
could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)-(3).)
       Pursuant to section 1170.95, subdivision (c), the petition
shall include, among other things, a declaration by the petitioner
stating he or she is eligible for relief based on all three
aforementioned requirements of subdivision (a). A trial court
that receives a petition under section 1170.95 “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.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.”
(§ 1170.95, subd. (c).)
       The trial court must then 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 previously been




                                24
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.” (§ 1170.95, subd. (d)(1).) “The parties
may waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction vacated
and for resentencing. If there was 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.” (§ 1170.95, subd. (d)(2).) Significantly, if a hearing is
held, “[t]he 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).) “[T]he burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).) “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.”
(§ 1170.95, subd. (d)(3).)
       Section 1170.95, subdivision (f) states: “This section does
not diminish or abrogate any rights or remedies otherwise
available to the petitioner.”

             2.    Retroactivity of Senate Bill 1437
      The information filed against defendant charged him with
murder under section 187, subdivision (a). Among the
instructions given to the jury were instructions that allowed the
jury to convict defendant of first degree murder pursuant to
either a felony murder theory or the natural and probable
consequences doctrine, as both were defined prior to the effective




                                 25
date of Senate Bill 1437. Defendant was convicted of first degree
murder.
       Defendant contends Senate Bill 1437 applies retroactively
to him, he argues retroactive application of the amended law
means the trial court advised the jury incorrectly on the elements
of murder, and he asks us to reverse his conviction and remand
for a new trial. Defendant relies on retroactivity principles
espoused in In re Estrada (1965) 63 Cal.2d 740 (Estrada) to
assert he need not file a petition under section 1170.95 because
his conviction is not yet final. The Attorney General, by contrast,
argues defendant must proceed only by way of a petition
pursuant to section 1170.95 and cannot circumvent that process
by seeking retroactive relief in this appeal. The Attorney General
has the better argument.
       Our Supreme Court recently summarized the principles
articulated in Estrada, supra, 63 Cal.2d 740: “‘[A]n amendatory
statute lessening punishment is presumed to apply in all cases
not yet reduced to final judgment as of the amendatory statute’s
effective date’ (People v. Floyd (2003) 31 Cal.4th 179, 184[ ], citing
Estrada, at p. 744), unless the enacting body ‘clearly signals its
intent to make the amendment prospective, by the inclusion of
either an express saving clause or its equivalent’ (People v.
Nasalga (1996) 12 Cal.4th 784, 793[ ]; see Estrada, at p. 747).
This rule rests on an inference that when the Legislature has
reduced the punishment for an offense, it has determined the
‘former penalty was too severe’ (Estrada, at p. 745) and therefore
‘must have intended that the new statute imposing the new
lighter penalty . . . should apply to every case to which it
constitutionally could apply’ (ibid.).” (People v. DeHoyos (2018) 4
Cal.5th 594, 600 (DeHoyos).)




                                 26
       Two recent California Supreme Court opinions in
circumstances analogous to those here point the way to the
proper resolution of whether Senate Bill 1437 should be given
retroactive effect on direct appeal notwithstanding the bill’s
enactment of the section 1170.95 petitioning procedure.
       In People v. Conley (2016) 63 Cal.4th 646 (Conley), our
Supreme Court considered whether Estrada’s holding compelled
a conclusion that the Three Strikes Reform Act of 2012,
commonly known as Proposition 36, applied retroactively to
defendants whose judgments were not yet final. (Id. at pp. 655-
656.) The defendant in Conley had been sentenced to an
indeterminate term of 25 years to life under the Three Strikes
law. Voters passed Proposition 36 while his appeal was pending
(id. at pp. 654-655), and the initiative reduced the penalty for
some third strike offenders whose third strike was not a serious
or violent felony (id. at p. 652). Proposition 36 also created a
post-conviction procedure that allowed prisoners who were
already serving indeterminate life terms to seek resentencing for
offenses that, if committed after the act’s effective date, would no
longer support life terms. (§ 1170.126, subd. (b).)
       The defendant in Conley argued he was entitled to rely on
Estrada’s retroactivity rule, which would enable him to seek
Proposition 36 relief without complying with the initiative’s
petition procedure. (Conley, supra, 63 Cal.4th at pp. 654-655.)
That procedure, among other things, gives trial judges discretion
to withhold Proposition 36 relief if a judge finds that resentencing
the petitioner would pose an unreasonable risk of danger to
public safety. (Ibid.; § 1170.126, subd. (f).)
       Our Supreme Court rejected defendant Conley’s argument
and held the post-conviction procedure provided by section




                                27
1170.126 was the exclusive means by which those who had been
sentenced before Proposition 36’s effective date could seek relief
under the new law. (Conley, supra, 63 Cal.4th at pp. 661-662.)
The Court acknowledged the continuing vitality of the Estrada
rule in the unremarkable case of an ameliorative statute silent on
whether it applies retroactively, but the Supreme Court
concluded Conley was not entitled, on direct appeal, to invoke
Proposition 36’s changes to prior law for three principal reasons.
       First, Proposition 36 was “not silent on the question of
retroactivity” but instead “expressly addresse[d] the question in
section 1170.126, the sole purpose of which is to extend the
benefits of [Proposition 36] retroactively.” (Conley, supra, 63
Cal.4th at p. 657.) In doing so, Proposition 36 did not distinguish
between persons serving final sentences and those serving
nonfinal sentences. (Ibid.)
       Second, Proposition 36 made resentencing contingent on a
court’s evaluation of a defendant’s dangerousness. Conferring an
automatic entitlement to resentencing on defendants whose cases
were still pending on direct appeal would not allow courts to
conduct that inquiry, and the court found no basis to hold the
electorate intended “for courts to bypass the public safety inquiry
altogether in the case of defendants serving sentences that are
not yet final.” (Conley, supra, 63 Cal.4th at pp. 658-659.)
       Third, the changes in law worked by Proposition 36 not
only reduced previously prescribed criminal penalties but also
established “a new set of disqualifying factors that preclude a
third strike defendant from receiving a second strike sentence,”
factors that the prosecution was required to plead and prove.
(Conley, supra, 63 Cal.4th at p. 659.) Because Proposition 36 did
not address the complexities involved in applying the pleading-




                                28
and-proof requirements to previously sentenced defendants, the
court concluded the electorate did not contemplate those
provisions would apply to previously sentenced defendants. (Id.
at pp. 660-661.) Rather, they intended such defendants to seek
relief under section 1170.126, which did not contain pleading-
and-proof requirements.
       Our Supreme Court reached a similar result in DeHoyos,
supra, 4 Cal.5th 594, which presented the question of whether
Proposition 47 (“the Safe Neighborhoods and Schools Act”)
applied retroactively to nonfinal cases on direct appeal.
“Proposition 47 redefined several common theft- and drug-related
felonies as either misdemeanors or felonies” and enacted a
petitioning procedure similar to that enacted as part of
Proposition 36. (Id. at p. 597.) The DeHoyos court noted
Proposition 47, like Proposition 36, was “an ameliorative criminal
law measure that is ‘not silent on the question of retroactivity,’
but instead contain[ed] a detailed set of provisions designed to
extend the statute’s benefits retroactively.” (Id. at p. 603.) Those
provisions included a recall of sentence petitioning mechanism
for individuals “serving a sentence” for a covered offense as of
Proposition 47’s effective date. (§ 1170.18, subd. (a).)
       As it did in Conley when analyzing Proposition 36, the
DeHoyos court found it significant that Proposition 47’s recall of
sentence petitioning mechanism drew “no express distinction
between persons serving final sentences and those serving
nonfinal sentences, instead entitling both categories of prisoners
to petition courts for recall of sentence” and “expressly ma[king]
resentencing dependent on a court’s assessment of the likelihood
that a defendant’s early release will pose a risk to public safety,
undermining the idea that voters ‘categorically determined that




                                29
“imposition of a lesser punishment” will in all cases “sufficiently
serve the public interest.”’ (Conley, [supra, 63 Cal.4th] at p. 658;
see § 1170.18, subd. (b).)” (DeHoyos, supra, 4 Cal.5th at p. 603.)
The DeHoyos court acknowledged Proposition 47 differed from
Proposition 36 in that it did not “create new sentencing factors
that the prosecution must ‘plead[ ] and prove[ ]’ ([ ]§ 1170.12,
subd. (c)(2)(C)) to preclude a grant of leniency.” (Ibid.) The Court
explained, however, that other indicia of legislative intent,
including Proposition 47’s broad statement of purpose, revealed
the initiative’s petitioning procedure was meant to be the
exclusive avenue for retroactive relief for all previously sentenced
defendants, whether or not their sentences were final. (Ibid.)
       The analytical framework animating the decisions in
Conley and DeHoyos is equally applicable here. Like Propositions
36 and 47, Senate Bill 1437 is not silent on the question of
retroactivity. Rather, it provides retroactivity rules in section
1170.95. The petitioning procedure specified in that section
applies to persons who have been convicted of felony murder or
murder under a natural and probable consequences theory. It
creates a special mechanism that allows those persons to file a
petition in the sentencing court seeking vacatur of their
conviction and resentencing. In doing so, section 1170.95 does
not distinguish between persons whose sentences are final and
those whose sentences are not. That the Legislature specifically
created this mechanism, which facially applies to both final and
nonfinal convictions, is a significant indication Senate Bill 1437
should not be applied retroactively to nonfinal convictions on
direct appeal.
       The remainder of the procedure outlined in section 1170.95
underscores the Legislative intent to require those who seek




                                30
retroactive relief to proceed by way of that statutorily specified
procedure. The statute requires a petitioner to submit a
declaration stating he or she is eligible for relief based on the
criteria in section 1170.95, subdivision (a). (§ 1170.95, subd.
(b)(1)(A).) Where the prosecution does not stipulate to vacating
the conviction and resentencing the petitioner, it has the
opportunity to present new and additional evidence to
demonstrate the petitioner is not entitled to resentencing.
(§ 1170.95, subd. (d)(3).) The petitioner, too, has the opportunity
to present new or additional evidence on his or her behalf.
(§ 1170.95, subd. (d)(3).) Providing the parties with the
opportunity to go beyond the original record in the petition
process, a step unavailable on direct appeal, is strong evidence
the Legislature intended for persons seeking the ameliorative
benefits of Senate Bill 1437 to proceed via the petitioning
procedure. The provision permitting submission of additional
evidence also means Senate Bill 1437 does not categorically
provide a lesser punishment must apply in all cases, and it also
means defendants convicted under the old law are not necessarily
entitled to new trials. This, too, indicates the Legislature
intended convicted persons to proceed via section 1170.95’s
resentencing process rather than avail themselves of Senate Bill
1437’s ameliorative benefits on direct appeal.
       Defendant resists this conclusion, arguing Conley and
DeHoyos are distinguishable because the petitioning procedures
enacted by Propositions 36 and 47 conditioned sentencing relief
on a trial court finding that the defendant would not pose an
unreasonable risk of danger if released, and section 1170.95
contains no such requirement. While defendant is correct that
section 1170.95 does not require a dangerousness inquiry, neither




                                31
Conley nor DeHoyos holds that inquiry was the indispensable
statutory feature on which the result in those cases turned. To
the contrary, Conley notes “[o]ur cases do not ‘dictate to
legislative drafters the forms in which laws must be written’ to
express an intent to modify or limit the retroactive effect of an
ameliorative change; rather, they require ‘that the Legislature
demonstrate its intention with sufficient clarity that a reviewing
court can discern and effectuate it.’” (Conley, supra, 63 Cal.4th at
pp. 656-657; see also People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 312 [explaining Conley held Estrada’s inference of
retroactivity was inapplicable because “the legislation contained
its own retroactivity provision”].) Accordingly, we look not for
specific procedural conditions, but for indicia of the Legislature’s
intent. Here, as we have already detailed, the other indications
the Legislature intended to restrict individuals who have already
been convicted to the petitioning procedure outlined in section
1170.95 are considerable.
       Defendant additionally argues his right to seek reversal of
his conviction on direct appeal is supported by other cases in
which defendants were allowed to argue a conviction must be
reversed on direct appeal due to a legislative change in the
elements of a criminal offense. Both cases defendant cites in
support of this argument involved changes to the substantive
elements of the defendants’ crimes before their sentences were
final (People v. Ramos (2016) 244 Cal.App.4th 99; People v.
Collins (1978) 21 Cal.3d 208), but neither involved a new or
amended law that “modif[ied], limit[ed], or entirely forb[ade] the
retroactive application of ameliorative criminal law
amendments.” (Conley, supra, 63 Cal.4th at p. 656.) They are
thus inapposite here.




                                32
       Defendant further contends section 1170.95, subdivision (f)
supports his argument for direct appeal retroactivity because it
states: “This section does not diminish or abrogate any rights or
remedies otherwise available to the petitioner.” The court in
Conley rejected a similar argument concerning an analogous
provision included in the text of Proposition 36, reasoning that
provision “contain[ed] no indication that automatic
resentencing—as opposed to, for example, habeas corpus relief—
ranks among the ‘rights’ the electorate sought to preserve.”
(Conley, supra, 63 Cal.4th at pp. 661-662.) We reach the same
conclusion here, where there is no indication that reversal of a
defendant’s sentence on direct appeal without compliance with
the procedures outlined in section 1170.95 was among the
“rights” the Legislature sought to preserve in enacting Senate
Bill 1437.
       We add a final note, albeit on a point not raised by
defendant. Although we hold the section 1170.95 petition
procedure is the avenue by which defendants with nonfinal
sentences of the type specified in section 1170.95, subdivision (a)
must pursue relief, we are cognizant of the possibility that some
defendants may be able to present a particularly strong case for
relief under the changes worked by Senate Bill 1437 and wish to
seek that relief immediately rather than await the full
exhaustion of their rights to directly appeal their conviction. Our
holding today does not foreclose such immediate relief in an
appropriate case.
       Once a notice of appeal is filed, jurisdiction vests in the
appellate court until the appeal is decided on the merits and a
remittitur issues. (People v. Awad (2015) 238 Cal.App.4th 215,
220 (Awad); see also People v. Scarbrough (2015) 240 Cal.App.4th




                                33
916, 923.) But a defendant retains the option of seeking to stay
his or her pending appeal to pursue relief under Senate Bill 1437
in the trial court. A Court of Appeal presented with such a
request and convinced of its merit can order the pending appeal
stayed with a limited remand to the trial court for the sole
purpose of permitting the trial court to rule on a petition under
section 1170.95. (See, e.g., Awad, supra, at p. 222.) In those
cases where a stay is granted and a section 1170.95 petition is
successful, the direct appeal may either be fully or partially moot.
If the petition is unsuccessful, a defendant may seek to augment
the appellate record, as necessary, to proceed with any issues
that remain for decision.
       In light of our conclusion that defendant must file a section
1170.95 petition in the trial court to seek retroactive relief under
Senate Bill 1437, we express no view on whether he should be
granted Senate Bill 1437 relief. That will be a question for the
trial court in the first instance, if a section 1170.95 petition is
filed.




                                34
                         DISPOSITION
      The judgment is affirmed.

        CERTIFIED FOR PARTIAL PUBLICATION




                       BAKER, Acting P. J.

We concur:




      KIM, J.




      JASKOL, J.*




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




                                35
