P. v. Sanders

Filed 2/24/21 P. v. Sanders CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDDIE LEE SANDERS
Defendant and Appellant.
B307031
(Los Angeles County
Super. Ct. No. TA094940)
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed.
John P. Dwyer, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________

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Freddie Lee Sanders appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.95.1 No arguable issues have been identified
following review of the record by Sanders’s appointed appellate
counsel or by Sanders in his supplemental brief to this court. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On the evening of October 8, 1998 three Blood Street gang
members were pulled over by the police, and the car was
impounded because the driver did not have a license.2 The gang
members, all wearing the red color associated with their gang,
were forced to walk near a rival gang area. As they were
walking, a green Cadillac driven by David Livingston, a member
of the rival Park Village Crips gang, drove by with two male
passengers. The car then returned with Livingston in the
passenger seat. Livingston fired seven or eight shots from an
assault rifle, and one of the bullets hit a bystander in the leg.
Later that evening the green Cadillac arrived at the
Wilmington Arms apartment complex, with Darrell Brown in the
driver’s seat, Livingston in the front passenger seat, and Sanders
in the back seat. Sanders and Brown lived at the complex, and
Livingston frequently visited. Sanders was a member of the Park
1 Statutory references are to this code.
2 The summary of facts is drawn from our nonpublished
opinion in People v. Sanders (Jan. 17, 2012, B220328)
(Sanders II).

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Village Crips gang. A security guard saw the vehicle enter the
complex. When police officers arrived a short time later to
investigate the shooting, the security guard directed them to the
green Cadillac. The next day Livingston approached the guard
shack and threatened to kill the guard who had directed the
police officers to his car.
A few days before January 2, 1999, a resident of the
Wilmington Arms complex overheard Sanders and Livingston
talking. Livingston said to Sanders, “Just don’t be a punk.” “Are
you down to shoot them, Mother Fuckers?” “Are you down? Are
you just a little punk.” “Fuck them at the gate [or] ‘front.’”
Sanders did not verbally respond to Livingston’s comments.
Later that evening, witnesses saw a group of men including
Sanders and Livingston enter and exit the complex in
Livingston’s green Cadillac several times. Around 11:30 p.m. two
witnesses overheard a loud argument near the guard shack.
They saw Sanders, Livingston, and a third male standing near
the green Cadillac parked near the guard shack. Livingston and
the third male were yelling into the guard shack, “Fuck you,
motherfucker, we’ll get you later.” Sanders responded, “No, man,
not right now,” and “Come on. Let’s go. We’ll do it later.”3 The
three got in the Cadillac and drove away.
At approximately 5:00 the next morning four security
guards for the complex were inside the guard shack. One of the
guards, Rudolpho Bombarda, heard someone say “Mother
3 In our opinion we described the person who said they
should leave and “do it later” as “[t]he other African-American
male,” but the record reflects one of the witnesses identified the
male as Sanders. For purposes of our review, it does not matter
whether the speaker was Sanders or another male.

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fucker,” he looked up, and he saw Livingston pointing an assault
rifle at him. Livingston then began firing and shot Bombarda six
times. Bombarda was able to return fire and survived.
Livingston fired approximately 15 rounds at the four security
guards, killing two of the guards and blinding a third. Witnesses
saw Sanders standing with another man facing the guard shack,
and then Sanders ran away from the scene.
B. Sanders’s Convictions and Appeals
In 2000 the jury convicted Sanders of two counts of second
degree murder (§ 187, subd. (a)) and two counts of attempted
willful, deliberate, and premeditated murder (§§ 187, subd. (a),
664). The jury found true the allegations Sanders was armed
with a firearm in the commission of the offenses (§ 12022, subd.
(a)(1)) and the crime was committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). The jury also found true the
lying-in-wait and multiple-murder special-circumstance
allegations (§ 190.2, subd. (a)(3) & (15)). The jury also convicted
Sanders with respect to an unrelated May 1999 robbery of two
counts of second degree robbery and two counts of assault with a
firearm and found the firearm enhancement allegations true.
The trial court imposed an aggregate sentence of 55 years to life
in state prison. (Sanders II, supra, B220328.)
In his first appeal, we reversed the convictions and
sentences, concluding the murder and attempted murder counts
were erroneously joined with the May 1999 robbery and assault
counts. (See People v. Sanders (July 17, 2002, B142864) [nonpub.
opn.] (Sanders I).) Sanders later entered a no contest plea to two
counts of robbery based on the May 1999 crimes and was
sentenced to 10 years in state prison.

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In 2008 Sanders was again charged with two counts of
murder and two counts of attempted willful, deliberate, and
premeditated murder based on the January 1999 shooting. The
jury deadlocked, and the trial court declared a mistrial. After a
third trial in 2009 the jury convicted Sanders of two counts of
second degree murder and two counts of attempted willful,
deliberate, and premeditated murder. As to all counts, the jury
found true that a principal personally and intentionally
discharged a firearm causing great bodily injury or death
(§ 12022.53, subds. (c), (d), & (e)(1)) and the offenses were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). The court sentenced Sanders to 30 years to life
for the murders and two consecutive life sentences for the
attempted murders.
In 2012 we affirmed the convictions but vacated the
sentence and remanded the matter for resentencing because the
trial court imposed a longer sentence for the guard shack
shootings than the court had imposed for the same shootings in
2000. (Sanders II, supra, B220328.)
C. Sanders’s Petition for Resentencing
On January 3, 2019 Sanders, representing himself, filed a
form petition for resentencing under section 1170.95 and
requested the court appoint counsel for him. In his petition
Sanders declared he could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189
effective January 1, 2019; he was not the actual killer; he did not,
with the intent to kill, aid or abet the actual killer in the
commission of first degree murder; and he was not a major

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participant in the underlying felony and did not act with reckless
indifference to human life during the course of the felony.
The superior court appointed counsel for Sanders. The
People filed an opposition to Sanders’s petition in which they
argued Sanders was ineligible for relief as a matter of law. The
People argued, “[T]he People proceeded under two theories of
liability. As a non-shooter (non-actual killer), Sanders was
alleged, via the jury instructions, to have aided and abetted . . .
Livingston commit the crimes of murder and attempted
murder. . . . Notably, the concept of natural and probable
consequences was not included in the instructions related to
aiding and abetting, and he was never alleged to have aided in
the commission of a lesser target offense that resulted in the
charged crimes. . . . [¶] He was also informally alleged to have
been a co-conspirator. . . . Specifically, Sanders was alleged to
have conspired to . . . commit the crime of murder. . . . The
defendant was not alleged to have conspired to commit another
target offense and the jury was not instructed that they could
convict the defendant of murder if murder was the natural and
probable consequences of any designated target offense.
Accordingly, the jury could only convict Sanders of murder or
attempted murder under the conspiracy theory if the jury found
that he specifically conspired to commit the crime of murder.”
The People also argued in a separate brief that Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was
unconstitutional. Sanders filed a response in which he argued
that Senate Bill 1437 was constitutional, and a reply brief in
which he argued he had made a prima facie showing of eligibility
for relief.

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After reviewing the petition, the jury instructions, other
documents in the court file, and the parties’ briefing, on July 24,
2020 the superior court summarily denied Sanders’s petition.
The court found Sanders had not established a prima facie basis
for relief as a matter of law, explaining, “Petitioner was convicted
[of] two counts of murder and . . . two counts of attempted
murder. There was compelling evidence that petitioner conspired
with others and was definitely aware of the attack prior to the
shooting. [¶] Petitioner directly and explicitly aided and abetted
as he was the ‘lookout’ at an ambush shooting where the shots
were fired killing the victims. Petitioner clearly harbored an
intent to kill because he was present when the attack was
planned and knew the shooter’s plan and stayed right there as
the shooter fired multiple times. Again, the prosecution’s theory
at trial was that petitioner conspired to commit murder (not a[]
lessor felony); that he aided and abetted the crime of murder; and
the prosecution did not argue that the jury should find that the
murder was a ‘natural and probable consequence’ of the other
criminal conduct. The jury’s verdict reflects a factual finding that
they agreed with the theory and the evidence was compelling to
support that verdict. . . . [¶] . . . There was no evidence that
[petitioner] was ‘surprised’ that the shooting occurred. Petitioner
fled the scene with the other assailants after the shooting. There
is no[] reference[] in petitioner’s filings to any evidence,
probability/possibility that the jury did not find that petitioner
possessed the requisite intent for murder. There is nothing in
the record to suggest that the jury wavered in their findings. [¶]
The evidence in this case show[s] that petitioner acted as
‘lookout’ when the shooter slaughtered the victims in this case.

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Petitioner also fled the [scene] afterward and hid out with the
other suspects.”
DISCUSSION
A. Senate Bill 1437
Senate Bill 1437, effective January 1, 2019, 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.” (Sen. Bill 1437 (2017-2018 Reg.
Sess.) § 1; see People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 325
(Verdugo), review granted Mar. 18, 2020, S260493.)
To accomplish this purpose, the Legislature added section
188, subdivision (a)(3), and section 189, subdivision (e). (Gentile,
supra, 10 Cal.5th at pp. 842-843.) New section 188, subdivision
(a)(3), effectively “eliminates natural and probable consequences
liability for murder regardless of degree.” (Gentile, at pp. 847-
848.) New section 188, subdivision (a)(3), provides, “Except 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.” New section 189, subdivision (e), in
turn, limits the exception to the malice requirement under the
felony-murder rule to circumstances where the People prove the
defendant “was a major participant in the underlying felony and

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acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”4
Senate Bill 1437 also provides a procedure in new section
1170.95 for an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4; see Gentile,
supra, 10 Cal.5th at p. 847.) “If the petition contains all required
information, section 1170.95, subdivision (c), prescribes a two-
step process for the court to determine if an order to show cause
should issue: ‘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 . . . and the petitioner may file and serve a reply . . . . 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.’”
4 New section 189, subdivision (e), provides, “A participant in
the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”

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(Verdugo, supra, 44 Cal.App.5th at p. 327, review granted;
accord, People v. Perez (2020) 54 Cal.App.5th 896, 903, review
granted Dec. 9, 2020, S265254; People v. Nguyen (2020)
53 Cal.App.5th 1154, 1165; People v. Tarkington (2020)
49 Cal.App.5th 892, 900-901 (Tarkington), review granted
Aug. 12, 2020, S263219; but see People v. Cooper (2020)
54 Cal.App.5th 106, 123, review granted Nov. 10, 2020, S264684
[once the trial court determines the petition contains the required
information, the court performs a single prima facie review, and
if the defendant makes a prima facie showing of entitlement to
relief, the court issues an order to show cause].)
B. Sanders Did Not Make the Required Prima Facie Showing
of Entitlement to Relief
In accordance with the procedures described in People v.
Cole (2020) 52 Cal.App.5th 1023, 1038, review granted Oct. 14,
2020, S264278, we appointed counsel to represent Sanders on
appeal. After reviewing the record, counsel filed a brief raising
no issues. On October 21, 2020 we notified Sanders he had 30
days to submit a brief or letter raising any grounds of appeal,
contentions, or arguments he wanted the court to consider. On
January 7, 2021 we received a 75-page supplemental brief,
including exhibits, in which Sanders argued he had made a
prima facie showing of eligibility for relief, noting the jury
instruction on conspiracy referred to the natural and probable
consequences doctrine.5
5 Sanders also contends his case should be remanded to
strike the firearm enhancement based on the discretion provided
under section 12022.53, subdivision (h). Because Sanders’s case

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The superior court properly concluded Sanders was
ineligible for relief as a matter of law because he harbored the
intent to kill and was convicted as a direct aider and abettor. As
the superior court noted, Sanders was not charged with an
underlying target offense. And, as we explained in Sanders I,
“The Drive-by Shooting incident disclosed the motive and intent
for the subsequent deadly attack on the guards. Livingston was
angry with the guards and threatened retaliation against them
because a guard assisted the Compton police in locating
Livingston’s Cadillac, which had been identified as the car
involved in the drive-by shooting. . . . [Sanders’s] knowledge of
the incident and his knowledge of the guard’s role in assisting the
police may be reasonably inferred because Sanders was seen in
the Cadillac by the security guard shortly after the drive-by
shooting before the police arrived to impound the vehicle.”
Further, “Sanders was not an innocent by-stander outside the
guard shack at the time of the fatal shootings, and instead,
Sanders was present because he knew the guard had cooperated
with police and because Sanders intended to lend aid and support
to Livingston’s plan to seek revenge against the guards.”
(Sanders I, supra, B142864.)6 Sanders then fled the scene with
his confederates.
became final before the effective date of section 12022.53,
subdivision (h), he is not entitled to relief under this statute.
(People v. Zamora (2019) 35 Cal.App.5th 200, 207; see In re
Estrada (1965) 63 Cal.2d 740, 742.)
6 “A court of appeal opinion, whether or not published, is
part of the appellant’s record of conviction.” (Verdugo, supra,
44 Cal.App.5th at p. 333, review granted; accord, Tarkington,
supra, 49 Cal.App.5th at p. 899, fn. 5, review granted.)

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Contrary to Sanders’s contention, the jury was not
instructed that Sanders could be convicted of murder based on
the natural and probable consequences doctrine. The trial court
instructed the jury, “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 or
act.” As we noted in Verdugo, supra, 44 Cal.App.5th at page 336,
review granted, although the conspiracy instruction mentions the
natural and probable consequences doctrine, where the defendant
is not charged with a conspiracy to commit a lesser crime that
resulted in murder, this language would not support a conviction
of murder based on the natural and probable consequences
doctrine. We relied on the Supreme Court’s holding in People v.
Beck and Cruz (2019) 8 Cal.5th 548, 645, in which similar
conspiracy language was used, explaining the defendants there
“‘were charged with conspiracy to murder, not conspiracy to
commit a lesser crime that resulted in murder. There is thus no
possibility they were found guilty of murder on a natural and
probable consequences theory.’” (Verdugo, at p. 336, quoting Beck
and Cruz, at p. 645.)
Because no cognizable legal issues have been raised by
Sanders’s appellate counsel or by Sanders, the order denying the
section 1170.95 petition must be affirmed. (See People v. Cole,
supra, 52 Cal.App.5th at p. 1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People

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v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order denying Sanders’s petition is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.

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