P. v. Spillman

Filed 10/27/20 P. v. Spillman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
GLENN BARRY SPILLMAN,
Defendant and Appellant.
H047057
(Monterey County
Super. Ct. No. SS031841A)
Glenn Barry Spillman filed a postjudgment petition to vacate a second degree
murder conviction pursuant to Penal Code section 1170.95.1 Following a hearing, the
trial court determined that Spillman had not made a prima facie showing of entitlement to
relief warranting the issuance of an order to show cause (OSC) and denied the petition.
While the court concluded that Spillman had made an adequate showing of the first and
second prerequisites for an OSC, it found that he had failed to make an adequate showing
of the third prerequisite—namely, that he “could not be convicted of first or second
degree murder because of changes to [s]ection 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (a)(3).) Spillman appeals from the order.
On appeal, Spillman argues that the trial court erred by engaging in improper
judicial factfinding at a prima-facie-showing stage and that he had made a prima facie
showing of eligibility for relief under section 1170.95.2 In addition, Spillman asserts that
1 All further statutory references are to the Penal Code.
2 In opposition to Spillman’s petition, the People also contended that the trial court
should deny the petition because the enactment of Senate Bill No. 1437 (2017-2018

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the language of section 1170.95, subdivision (a)(3), should not be interpreted as limiting
relief to only those petitioners “as to whom there was constitutionally insufficient
evidence to permit conviction of murder under any valid theory.”
The People state “[t]o the extent the superior court ‘found’ that there was evidence
supporting the conclusion that [Spillman] could have been convicted of second degree
murder as . . . both a principle or direct aider and abettor, its resolution of disputed facts
was not appropriate at this preliminary stage.” They concede that “[a]n examination of
the record and briefing by counsel did not indisputably show as a matter of law that
[Spillman] was ineligible” and that Spillman is “entitled to a hearing to adjudicate the
facts upon which his assertion of eligibility depends.”
We decline to accept the People’s concession. The trial court properly relied upon
our 2009 appellate opinion (People v. Spillman (Aug. 17, 2009, H030551) [nonpub.
opn.]) in denying the petition. In the opinion, this court determined—based on the jury’s
verdict that Spillman was guilty of second degree murder and its true finding as to a
special allegation pursuant to section 190, subdivision (d) (190(d))3 and the evidence
presented at trial—that an instruction on the invalid theory of second degree felony
murder was harmless beyond a reasonable doubt because no juror could have found
Spillman participated in the fatal shooting, either as a shooter or as an aider and abettor,
without also finding that Spillman committed an act that is dangerous to life and did so
knowing of the danger and with conscious disregard for life, which constituted implied
Reg. Sess.) (Senate Bill 147), whose passage amended sections 188 and 189 and added
section 1170.95, was unconstitutional. The trial court did not reach those constitutional
arguments. The People do not raise any constitutional issues on appeal.
3 Section 190(d) stated at the time of the shooting—and does still state: “Every
person guilty of murder in the second degree shall be punished by imprisonment in the
state prison for a term of 20 years to life if the killing was perpetrated by means of
shooting a firearm from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict great bodily injury.” The trial court sentenced Spillman
to a state prison term of 20 years to life.

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malice. Implied malice murder continues to be a valid theory of criminal liability for
murder. (See § 188.) The harmless error analysis in our opinion refuted an essential
allegation of Spillman’s petition—namely, that he could not be convicted of murder due
to the changes to section 188 or 189, effective January 1, 2019.4
Accordingly, we affirm the court’s denial of Spillman’s petition.
I
Procedural Facts and History
On February 15, 2019, Spillman filed a petition pursuant to section 1170.95. In
the petition, a preprinted form signed under penalty of perjury, Spillman declared by the
checking of boxes that (1) a complaint, information, or indictment had been filed against
him that allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; (2) at trial, he was convicted of
first or second degree murder pursuant to the felony murder rule or the natural and
probable consequences doctrine; and (3) could not now be convicted of first or second
degree murder because of the changes made to sections 188 and 189, effective January 1,
2019. Spillman also checked the boxes declaring that (1) he was “convicted of [second]
degree murder under the [n]atural and probable [c]onsequences doctrin[e] or under the
[second] degree felony murder rule doctrin[e] and could not now be convicted of murder
because of the changes to . . . [section] 188, effective January 1, 2019” and that (2) there
was a “[p]rior determination by a [c]ourt or jury that [he] was not a [m]ajor participant
4 The Supreme Court has granted review in People v. Lewis (2020) 43 Cal.App.5th
1128 (Lewis), review granted March 18, 2020, S260598. In Lewis, the following issue is
pending before the Supreme Court: “May superior courts consider the record of
conviction in determining whether a defendant has made a prima facie showing of
eligibility for relief under Penal Code section 1170.95?”
(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_i
d=2311967&doc_no=S260598&request_token=NiIwLSEmXkg%2FW1BRSCNdVE9II
Dw0UDxTJSJeUzNRMCAgCg%3D%3D&bck=yes> [as of Oct. 27, 2020], archived at:
<https://perma.cc/N3UL-266D>.)

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and/or did not act with reckless [i]ndifference to human life under . . . [section] 190.2[,
subdivision] (d).”5
In support of this petition, Spillman filed as exhibits the abstract of judgment and
the minutes of the sentencing hearing. They showed that Spillman was convicted of
second degree murder perpetrated by means of shooting a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict great bodily
injury, and that Spillman was sentenced to state prison for a term of 20 years to life.
(See §§ 187, subd. (a), 190(d).)
The court set a hearing for March 28, 2019.
On March 7, 2019, Spillman filed a more individualized petition and a further
supporting declaration. In support of the petition, he also filed additional exhibits,
including the probation officer’s report and letters that had been relevant to sentencing.
Among other things, Spillman stated in his second declaration that he was “found
guilty of second degree murder after jury trial pursuant to the felony murder rule, or the
natural and probable consequences doctrine, and [he] was acquitted of personal use.” He
further stated that he “could not now be convicted of murder because of changes to Penal
Code [s]ection 188, effective January 1, 2019.” He also stated in part, “I could not now
5 While the information charged Spillman with first degree murder under
section 189, it did not contain a special circumstance allegation pursuant to section 190.2,
subdivision (d). In any case, Spillman was found not guilty of first degree murder.
Section 190.2, subdivision (d), states: “Notwithstanding subdivision (c), every person,
not the actual killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state prison for life without
the possibility of parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.” (Italics added; see In re
Scoggins (2020) 9 Cal.5th 667, 677 [discussing the elements of “reckless indifference to
human life” for purposes of section 190.2, subd. (d)].) This case did not involve the
commission of a felony enumerated in section 190.2, subdivision (a)(17).

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be convicted because of changes to Penal Code [s]ection 189, effective January 1, 2019,
for the following reasons: [¶] I was not the actual killer. [¶] I did not, with the intent to
kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree. [¶] I was not a major participant in the felony
or I did not act with reckless indifference to human life during the course of the crime or
felony.”6 (Italics added.)
On March 28, 2019, defense counsel accepted his appointment to represent
Spillman. The court and the parties discussed the filing of the People’s response to
Spillman’s petition and Spillman’s filing of a reply within 30 days thereafter. The court
set a hearing on the petition.
On April 26, 2019, the People filed opposition to the petition. The People
acknowledged that (1) the charging document had allowed the prosecution to proceed
against Spillman under a theory of felony murder or murder under the natural and
probable consequences doctrine and that (2) Spillman was convicted of second degree
murder. But the People asserted that Spillman had failed to make a prima facie showing
because under the evidence that had been offered at trial, Spillman still could be
convicted of murder on a theory that he killed with malice aforethought or directly aided
and abetted the killing. The People also argued that the trial court should deny the
petition because Senate Bill 1437 was “unconstitutionally enacted.”7
6 Spillman also stated that either the murder victim was not a peace officer in the
performance of his or her duties or “the circumstances were such that [he] should not
reasonably [have] been aware that the victim was a peace officer in the performance of
his or her duties.” He again averred that “[t]here has been a prior determination by a
court or jury that [he] was not a major participant and/or did not act with reckless
indifference to human life under Penal Code [s]ection 190.2[, subdivision] (d).”
(See ante, fn. 5.)
7 We do not include a description of their proffered evidence on the issue.
(See ante, fn. 2.)

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In support of their opposition, the People filed as exhibits the following
documents: (1) the information, filed October 14, 2003; (2) two minute orders; (3) the
June 16, 2006 jury verdicts; (4) the abstract of judgment; (5) this court’s first appellate
opinion; (6) this court’s superseding appellate opinion; and (7) the jury instructions,
impliedly from the second trial.
The information charged Spillman and another person with committing first
degree murder on or about May 21, 2003. The information “alleged that the murder was
perpetrated by means of discharging a firearm from a motor vehicle, intentionally at
another person outside of the vehicle, with the intent to inflict death as delineated in
Penal Code [s]ection 189.” As to Spillman, the information specifically alleged
“pursuant to Penal Code [s]ection 190(d),” that the murder was “perpetrated by means of
shooting a firearm from a motor vehicle with the intent to inflict great bodily injury.”
Also as to Spillman, the information alleged multiple personal firearm enhancements—
specifically, that in the commission of the charged offense, (1) Spillman intentionally and
personally discharged a firearm and proximately caused the victim’s death within the
meaning of section 12022.53, subdivision (d); (2) Spillman intentionally and personally
discharged a firearm within the meaning of section 12022.53, subdivision (c);
(3) Spillman intentionally and personally used a firearm within the meaning of
section 12022.53, subdivision (b); and (4) Spillman personally used a firearm within the
meaning of section 12022.5, subdivision (a).
A December 6, 2004 minute order showed that the first jury trial ended in a
mistrial.
At the second trial, the jury was instructed on multiple theories of criminal liability
for murder, both first and second degree, and on the special allegations. The 2006 jury
verdicts reflected that the jury found Spillman not guilty of first degree murder and guilty
of second degree murder. The jury found true that the offense was perpetrated by means
of shooting a firearm from a motor vehicle intentionally at another person outside of the

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vehicle with the intent to inflict great bodily injury within the meaning of section 190(d).
A June 16, 2006 minute order showed that the jury deadlocked on the personal firearm
allegations and was excused.
After our original opinion affirmed the judgment, the California Supreme Court
granted review. (People v. Spillman (April 25, 2008, H030551) [nonpub. opn.], review
granted July 16, 2008, S163791.) After deciding People v. Chun (2009) 45 Cal.4th 1172
(Chun), the Supreme Court transferred the matter of People v. Spillman to this court with
directions to vacate our decision and to reconsider the cause in light of Chun.
In Chun, the Supreme Court held: “When the underlying felony is assaultive in
nature, such as a violation of section 246 or 246.3, . . . the felony merges with the
homicide and cannot be the basis of a felony-murder instruction. An ‘assaultive’ felony
is one that involves a threat of immediate violent injury. [Citation.] In determining
whether a crime merges, the court looks to its elements and not the facts of the case.
Accordingly, if the elements of the crime have an assaultive aspect, the crime merges
with the underlying homicide even if the elements also include conduct that is not
assaultive.”8 (Chun, supra, 45 Cal.4th at p. 1200.) The Supreme Court specifically
concluded that “shooting at an occupied vehicle under section 246 is assaultive in nature
and hence cannot serve as the underlying felony for purposes of the felony-murder rule.”
(Ibid., fn. omitted.)
This court’s second opinion again affirmed Spillman’s conviction. (People v.
Spillman (Aug. 17, 2009, H030551) [nonpub. opn.].)
8 In 2009, the Supreme Court held that the merger doctrine does not apply to first
degree felony murder and prospectively overruled contrary precedent. (People v. Farley
(2009) 46 Cal.4th 1053, 1117, 1121-1122.)

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In response to the People’s opposition to his petition, Spillman maintained that he
had made a prima facie case for relief under section 1170.95.9 He asserted that he could
not be found guilty as the actual shooter because upon retrial, a jury had found all the
personal firearm enhancements (§§ 12022.53, subds. (b), (c), and (d), 12022.5) not true.
He contended that the trial court had instructed on two theories of liability that are no
longer valid—felony murder and the natural and probable consequences—and that the
trial court should issue an OSC to determine whether he had been convicted under a
legally permissible theory. He argued that a prima facie showing did not “require proof
sufficient to prevail on the ultimate issue” and that it was enough to present facts that, if
believed, entitled him to relief. Citing section 188, subdivision (a)(3), Spillman asserted
that “malice may not be imputed to a person based solely on his or her participation in a
crime other than the murder itself.”
In support of his claims, Spillman filed additional exhibits, including (1) this
court’s original opinion; (2) our 2009 opinion; (3) the trial court’s May 13, 2010 minutes,
indicating that upon retrial, the jury found the four personal firearm enhancements
(§§ 12022.53, subds. (b), (c), and (d), 12022.5) not true; and (4) the May 13, 2010 jury
verdicts reflecting those four not-true findings.10
In supplemental opposition to the section 1170.95 petition, the People argued that
despite the not-true findings on the personal firearm enhancements, Spillman could still
be found to be the actual shooter, citing People v. Lopez (1982) 131 Cal.App.3d 565
(Lopez).11 The People contended that the trial court was not “limited to considering
9 Spillman also argued that the trial court should reject the prosecution’s
arguments that Senate Bill 1437 was unconstitutional. As indicated, that issue was not
reached by the trial court and is not raised on appeal.
10 Spillman filed exhibits related to the People’s constitutional arguments as well.
11 In Lopez, a jury convicted the defendant of six counts of assault with a deadly
weapon, but it found that the defendant had not personally used a firearm in committing
the offenses. (Lopez, supra, 131 Cal.App.3d at pp. 568-569.) The defendant challenged
the sufficiency of the evidence to support the jury’s guilty verdicts, contending that he

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[Spillman] as a non-shooter” because there was “tremendous evidence in the record
demonstrating that [Spillman] was the shooter in this case, and that has always been the
People’s theory.” The People maintained that “[a]s the actual killer, [Spillman] [was]
ineligible for resentencing under [section] 1170.95.”
A hearing on the petition was held on June 25, 2019. Defense counsel argued
based on the “not true” findings made by a jury upon retrial that it was “illogical to
assume that the jury could find him the actual killer if he did not actually fire a firearm.”
Defense counsel also contended that “the sole basis [on which Spillman] could be
convicted . . . today would be under a straight aider and abettor theory” and that this issue
should be decided at an OSC hearing where the parties would “present evidence on both
sides.” The prosecutor asserted that “the issue here is not whether [Spillman] was
convicted as the actual killer but if he could be under today’s law” and that the “burden
ha[d] not been met by the defense.”
The trial court recognized that the parties agreed that the information filed against
Spillman had allowed the prosecution to proceed under a theory of felony murder or the
natural and probable consequences doctrine and that Spillman had been convicted of
second degree murder. But the court determined that Spillman had not satisfied the
“third prerequisite” for relief, which was that “the petitioner could not be convicted of
first or second degree murder because of changes to the law.” The trial court observed
that the prosecutor had advanced multiple theories at trial, including “[f]elony murder,
natural and probable consequences, as the principal, and as an aider and abettor.”12 It
could not have been the shooter given the jury’s finding and there was insufficient
evidence that he aided and abetted such assaults. (Id. at p. 569.) The appellate court
indicated that an inconsistent jury verdict should not be invalidated if it is otherwise
supported by a substantial evidence. (Id. at p. 571.) The court found sufficient evidence
to support the convictions. (Id. at 572.)
12 We assume that the trial court used the term “principal” to mean perpetrator.
The Penal Code defines the word “principals” to include perpetrators and aiders and
abettors. (§ 31 [“All persons concerned in the commission of a crime, whether it be

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stated that it had reviewed “the facts and circumstances, the case law, [and] the appellate
decision on the very issue of aiding and abetting.” It found that Spillman “could have
been convicted of second degree murder as a principal and could have been convicted of
second degree murder as an aider and abettor.” The court concluded that Spillman had
failed to make the requisite showing to warrant a hearing. The trial court denied the
petition. The court found it unnecessary to reach the constitutional issues.
II
Governing Law
A. Changes to the Law of Murder
Section 187, subdivision (a), defines murder as “the unlawful killing of a human
being, or a fetus, with malice aforethought.” As amended effective January 1, 2019
(Stats. 2018, ch. 1015, § 2), section 188, subdivision (a), provides: “For purposes of
[s]ection 187, malice may be express or implied. [¶] (1) Malice is express when there is
manifested a deliberate intention to unlawfully take away the life of a fellow creature.
[¶] (2) Malice is implied when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant heart.
[¶] (3) Except as stated in subdivision (e) of [s]ection 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.”
“[F]irst degree felony murder, along with the predicate crimes underlying it, is
expressly described in section 189.” (People v. Powell (2018) 5 Cal.5th 921, 943
(Powell).) First degree felony murder includes murder “perpetrated by means of
felony or misdemeanor, and whether they directly commit the act constituting the
offense, or aid and abet in its commission, or, not being present, have advised and
encouraged its commission, . . . are principals in any crime so committed”]; see People v.
Prettyman (1996) 14 Cal.4th 248, 259 [“Under California law, a person who aids and
abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of
the actual perpetrator.”], superseded by statute on another ground as stated in People v.
Lopez (2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175.)

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discharging a firearm from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict death.” (§ 189, subd. (a).) Effective January 1, 2019
(Stats. 2018, ch. 1015, § 3), 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.” (Italics
added; see ante, fn. 5.) Thus, “the standard under section 189, subdivision (e)(3) for
holding . . . a defendant liable for [first degree] felony murder is the same as the standard
for finding a special circumstance under section 190.2[, subdivision] (d), as the former
provision expressly incorporates the latter.” (In re Taylor (2019) 34 Cal.App.5th 543,
561.)
“Although second degree felony murder [was] grounded in an interpretation of
section 188, no statute specifically addresse[d] second degree felony murder. (People v.
Chun (2009) 45 Cal.4th 1172, 1182-1183.)” (Powell, supra, 5 Cal.5th at p. 943.) “[T]he
second degree felony-murder rule applie[d] only to felonies inherently dangerous to
human life. [Citations.]” (People v. Bryant (2013) 56 Cal.4th 959, 965.) “ ‘The felony-
murder rule impute[d] the requisite malice for a murder conviction to those who commit
a homicide during the perpetration of a felony inherently dangerous to life.’ [Citation.]”
(Chun, supra, at p. 1184.) It “ ‘act[ed] as a substitute’ for conscious-disregard-for-life
malice. [Citation.]” (Ibid.) As discussed above, Chun’s holding limited the second
degree felony murder rule to nonassaultive felonies inherently dangerous to life. (Id. at
p. 1200.) The rule has been further limited by the recent amendment of section 188.
(See 188, subd. (a)(3).)

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B. Postjudgment Petition to Vacate Murder Conviction and for Resentencing
As added, effective January 1, 2019 (Stats. 2018, ch. 1015, § 4), section 1170.95
established a postjudgment procedure to vacate a murder conviction and for resentencing
under certain conditions. Section 1170.95, subdivision (a), provides: “A person
convicted of felony murder or murder under a natural and probable consequences theory
may 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 when all of the
following conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder 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. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to [s]ection 188 or 189 made effective
January 1, 2019.”
The petition must include, among other things, “[a] declaration by the petitioner
that he or she is eligible for relief under this section, based on all the requirements of
subdivision (a).” (§ 1170.95, subd. (b)(1)(A).) The petition must specify “[w]hether the
petitioner requests the appointment of counsel.” (Id., subd. (b)(1)(C).) “If any of the
information required by . . . subdivision [(b)(1) of section 1170.95] is missing from the
petition and cannot be readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the petitioner that the matter
cannot be considered without the missing information.” (Id., subd. (b)(2).) An appellate
court has concluded that “[t]he reference to ‘readily ascertained’ information indicates
the legislature’s intent that the trial court consider reliable, accessible information—
specifically the record of conviction. [Citation.]” (People v. Torres (2020) 46
Cal.App.5th 1168, 1177, review granted June 24, 2020, S262011.)

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Section 1170.95, subdivision (c) (1170.95(c)) provides: “The court shall review
the petition and determine if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the petitioner has requested
counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor response is served. These
deadlines shall be extended for good cause. If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to show cause.”13 (Italics
added.)
“By its text, section 1170.95(c) thus requires the trial court to make two
assessments. The first is whether the petitioner has made a prima facie showing of
eligibility for relief. A petitioner is eligible for relief if he or she makes a prima facie
showing of the three criteria listed in section 1170.95(a)—namely he or she (1) was
charged with murder ‘under a theory of felony murder or murder under the natural and
probable consequences doctrine,’ (2) was convicted of first or second degree murder, and
(3) can no longer be convicted of first or second degree murder ‘because of changes to
[s]ection 188 or 189 made effective January 1, 2019.’ (§ 1170.95(a)); ([People v.
Verdugo (2020) 44 Cal.App.5th 320,] 329[, review granted]; see also § 1170.95,
subd. (b)(1)(A) [stating the petition must include a declaration by the petitioner that ‘he
or she is eligible for relief under this section, based on all the requirements of subdivision
13 The following issue is also pending before the Supreme Court in Lewis, supra,
43 Cal.App.5th 1128, review granted: “When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c)?”
(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_i
d=2311967&doc_no=S260598&request_token=NiIwLSEmXkg%2FW1BRSCNdVE9II
Dw0UDxTJSJeUzNRMCAgCg%3D%3D&bck=yes> [as of Oct. 27, 2020], archived at:
<https://perma.cc/N3UL-266D>); see ante, fn. 4.)

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(a)’].)”14 (People v. Drayton (2020) 47 Cal.App.5th 965, 975-976 (Drayton).) This
“prebriefing ‘first prima facie review’ is a ‘preliminary review of statutory eligibility for
resentencing[.]’ ” (People v. Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington),
review granted Aug. 12, 2020, S263219.) “The court’s role at this stage is simply to
decide whether the petitioner is ineligible for relief as a matter of law, making all factual
inferences in favor of the petitioner. [Citation.]” (People v. Verdugo, supra, 44
Cal.App.5th at p. 329, review granted; see ante, fn. 14.)
If the trial court determines that the petitioner has made a prima facie showing of
eligibility for relief, “the court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis, whether the petitioner
has made a prima facie showing he or she is entitled to relief. [Citations.]” (People v.
Verdugo, supra, 44 Cal.App.5th at p. 330, review granted.) In conducting “the ‘second’
inquiry into the prima facie showing under section 1170.95(c)” (Drayton, supra, 47
Cal.App.5th at p. 976), “the trial [court] considers whether the petitioner has made a
prima facie showing of entitlement to (rather than eligibility for) relief.” (Ibid.;
see Tarkington, supra, 49 Cal.App.5th at p. 897, review granted.)
In Drayton, this court concluded that “with respect to the trial court’s assessment
of whether the petitioner has made a prima facie showing of entitlement to relief
under section 1170.95(c), . . . habeas corpus procedures are sufficiently similar to provide
a reasonable construction of the meaning of the relevant language in subdivision (c).
(See Verdugo, supra, 44 Cal.App.5th at p. 328, review granted.)” (Drayton, supra, 47
Cal.App.5th at p. 980.) “Using the habeas corpus procedures as a guide to the legislative
intent with respect to the court’s review of the ‘ “prima facie showing that [the petitioner]
is entitled to relief” ’ under section 1170.95(c), we conclude[d] that, when assessing the
14 The Supreme Court has granted review in People v. Verdugo, supra, 44
Cal.App.5th 320 (Verdugo), review granted Mar. 18, 2020, S260493.

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prima facie showing, the trial court should assume all facts stated in the section 1170.95
petition are true. (Verdugo, supra, 44 Cal.App.5th at p. 328, review granted.) The trial
court should not evaluate the credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for example, a petitioner’s assertion
that a particular conviction is eligible for relief where the crime is not listed
in subdivision (a) of section 1170.95 as eligible for resentencing.” (Ibid.; see Tarkington,
supra, 49 Cal.App.5th at p. 898, review granted [“In this second prima facie evaluation,
the [trial] court employs the familiar standard for issuance of an order to show cause in a
habeas corpus proceeding”].)
We explained in Drayton, “Just as in habeas corpus, if the record ‘contain[s] facts
refuting the allegations made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ ([In re] Serrano [(1995)] 10 Cal.4th
[447,] 456.) However, this authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).” (Drayton, supra, 47 Cal.App.5th at p. 980.) In evaluating
the sufficiency of a petitioner’s prima facie showing under section 1170.95(c), a trial
court can consider the record of conviction, including an appellate opinion in a
petitioner’s direct appeal from the judgment of conviction. (Lewis, supra, 43
Cal.App.5th at pp. 1137-1138, review granted; see id. at p. 1136, fn. 7; see also People v.
Woodell (1998) 17 Cal.4th 448, 457; ante, fn. 4.)
In Drayton, we said that “because the petitioner does not bear the ultimate burden
of proof under section 1170.95, ‘the superior court’s issuance of an order to show cause
[under section 1170.95(c)] is only an assessment that petitioner has met a pleading
burden, not a production burden.’ ” (Drayton, supra, 47 Cal.App.5th at p. 980.) Within

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the time limits specified, the court must “hold a hearing to determine whether to vacate
the murder conviction and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not been previously been
sentenced, provided that the new sentence, if any, is not greater than the initial
sentence.”15 (§ 1170.95, subd. (d)(1).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be resentenced on the remaining
charges. The prosecutor and the petitioner may rely on the record of conviction or offer
new or additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3),
italics added.)
In Drayton, this court said that “[o]nce the trial court issues the order to show
cause, the burden of proof shifts to the prosecution.” (Drayton, supra, 47 Cal.App.5th at
p. 980.) To be most accurate, the petitioner has the burden of stating the prima facie case
for relief, but the prosecution has the burden of proof. (§ 1170.95, subds. (c), (d)(3);
cf. People v. Duvall (1995) 9 Cal.4th 464, 474 [habeas petitioner has the “initial burden
of pleading adequate grounds for relief”].) “At the subsequent hearing, conducted
pursuant to the procedures set out in [section 1170.95,] subdivision (d), the prosecution
bears the burden of proving beyond a reasonable doubt that the petitioner is ‘ineligible for
resentencing.’ (§ 1170.95, subd. (d)(3).)” (Drayton, supra, at p. 980)
15 However, “[t]he parties may waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction vacated and for resentencing.”
(§ 1170.95, subd. (d)(2).) “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.” (Ibid.; see ante, fn. 5)

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“If [a] petitioner is entitled to relief pursuant to [section 1170.95], murder was
charged generically, and the target offense was not charged, the petitioner’s conviction
shall be redesignated as the target offense or underlying felony for resentencing purposes.
Any applicable statute of limitations shall not be a bar to the court’s redesignation of the
offense for this purpose.” (§ 1170.95, subd. (e).)
III
Discussion
A. Judicial Factfinding Prohibited at the Prima Facie Showing Stage
As indicated, eligibility for relief under section 1170.95 is based on the
requirements set forth in its subdivision (a), including the third condition that “[t]he
petitioner could not be convicted of first or second degree murder because of changes to
[s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)
Spillman maintains that he did make a prima facie showing that “he legally ‘could not be
convicted’ under a still-valid theory” and that the trial court “improperly indulged in
judicial fact-finding at the prima facie showing stages.” Spillman argues that “[t]o read
section 1170.95 as did the lower court will effectively deny relief under the statute to any
individual, except . . . where there was constitutionally insufficient evidence to permit
retrial on a still-valid theory.” Spillman asserts that the statutory phrase “could not be
convicted” is more reasonably read to mean that a petitioner could not remain convicted,
or could not stand convicted, of murder because of the changes to section 188 or 189.
The meaning of the phrase “could not be convicted” must make sense in all its
applications under section 1170.95. It cannot have different meanings for purposes of the
various subdivisions of section 1170.95. (See § 1170.95, subds. (a)(3) [condition for
filing a petition], (b)(1)(A) [petitioner’s supporting declaration], (c) [judicial assessment
of whether prima facie showing made], (d) [judicial decision following an evidentiary
hearing].)

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We interpret the phrase “could not be convicted” in the context of the statutory
changes made to sections 188 and 189 and the express legislative intent for making those
changes (see Stats. 2018, ch. 1015, § 1).16 In this context, the verb “could” denotes
possibility or ability.17 The condition that “[t]he petitioner could not be convicted of first
or second degree murder because of changes to [s]ection 188 or 189 made effective
January 1, 2019” indicates that if the petitioner were tried now, there would be no
possibility of a murder conviction under current law.18 In other words, if the petitioner
were tried now, the prosecution would be unable to prove that the petitioner was guilty of
murder under current law. Of course, at the preliminary stages, a petitioner must make
16 Among other things, the Legislature declared: “It is necessary 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), italics added.) The Legislature also declared: “Except as stated in
subdivision (e) of [s]ection 189 of the Penal Code, a conviction for murder requires that a
person act with malice aforethought. A person’s culpability for murder must be premised
upon that person’s own actions and subjective mens rea.” (Id., subd. (g).)
17 See Merriam-Webster Dict. Online [can or could may be used as a “verbal
auxiliary” “to indicate possibility”] <https://unabridged.merriam-
webster.com/unabridged/can> [as of Oct. 27, 2020], archived at:
<https://perma.cc/M5P6-9ZS5>; The Oxford English Dict. Online (2020)
<https://www.oed.com/view/Entry/26857?rskey=PD6tbG&result=3#eid> [as of Oct. 27,
2020], archived at: <https://perma.cc/Z6MW-PSF3> [definition 15.a.(b): verb “could”
with infinitive, used in relation to the present or future, in “a clause resembling the main
clause of a conditional sentence” as “expressing the hypothetical objective possibility,
opportunity, or absence of prohibitive conditions: would be permitted or enabled by the
conditions of the case”; definition 16.a.: verb “could” with infinitive, used in relation to
the present or future, in “the main clause (apodosis) of a conditional sentence, or a clause
equivalent to this,” means “would be able to”]; see also Cambridge English Dict. Online
(2020) [the word “conditional” may relate to “a sentence, often starting with ‘if’ or
‘unless,’ in which one half expresses something which depends on the other half”]
<https://dictionary.cambridge.org/us/dictionary/english/conditional> [as of Oct. 27,
2020], archived at: <https://perma.cc/66LT-SCLZ>.
18 “If petitioner were now tried” is the implicit conditional clause.

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only a prima facie showing of eligibility or entitlement to relief under section 1170.95,
including as to the third condition for relief.
We agree with Spillman that at the preliminary “prima facie showing” stages,
judicial factfinding is prohibited. (See Drayton, supra, 47 Cal.App.5th at pp. 980, 982;
see also § 1170.95(c).) The questions at that point are (1) whether the petition contains
sufficient factual allegations to show a prima facie case of eligibility or entitlement to
relief and (2) whether an essential allegation of a petition is conclusively negated by a
matter of record, which defeats the prima facie case.
B. Effect of Findings on Personal Firearm Enhancements Allegations
As indicated, the jury that found Spillman guilty of second degree murder
deadlocked on the personal firearm enhancement allegations. The deadlock may suggest
that the jurors disagreed on whether the driver or Spillman was the shooter. But a jury’s
failure to agree on a finding as to an enhancement allegation may also show “ ‘no more
than jury lenity, compromise, or mistake, none of which undermines the validity of a
verdict.’ (People v. Lewis (2001) 25 Cal.4th 610, 656.)” (People v. Covarrubias (2016)
1 Cal.5th 838, 891 (Covarrubias) [although jury failed to reach verdict on allegation that
the defendant personally used a .38-caliber handgun, the evidence was sufficient to
support his convictions for attempted murder of and assault with a firearm on a victim on
the theory he was the direct perpetrator of those crimes].) The deadlock does not
establish that Spillman could not be convicted as the actual perpetrator of the murder.
Upon retrial of the personal firearm enhancement allegations against Spillman, a
subsequent jury found them “not true.” Citing People v. Santamaria (1994) 8 Cal.4th
903 (Santamaria), the People suggest that those later findings do not preclude Spillman
from being convicted of murder as the shooter under section 188 and 189, as amended.
The subsequent jury’s “not true” findings on the personal firearm enhancement
allegations meant only that those jurors had a reasonable doubt as to the truth of those
allegations. (See Santamaria, supra, 8 Cal.4th at p. 919.) In Santamaria, the Supreme

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Court explained that a “not true” finding on a personal knife use allegation “show[ed]
only that there was a reasonable doubt in the minds of the jurors that [the] defendant
specifically used a knife,” and “[i]t [did] not show the reverse, that the jury specifically
found defendant was an aider and abettor.” (Ibid.) The court observed that “[t]he jury
may merely have believed, and most likely did believe, that defendant was guilty of
murder as either a personal knife user or an aider and abettor but it may have been
uncertain exactly which role defendant played.” (Ibid.; see id. at pp. 920, 922; see also
People v. Thompson (2010) 49 Cal.4th 79, 119-120 (Thompson) [jury’s “not true” finding
on the personal gun use allegation (former § 12022.5) suggested that jury “may have
been uncertain” as to whether the defendant was guilty of murder as the actual shooter or
as an aider and abettor, but the finding did not “necessarily demonstrate it based its
murder verdict on an aider and abettor theory. [Citation.]”].) Thus, the ultimate “not
true” findings on the personal firearm enhancement allegations were not affirmative
findings that Spillman was not the shooter.
Nevertheless, we assume that the “not true” findings on the personal firearm
enhancement allegations together with Spillman’s declaration that he was not the “actual
killer” suffice for a prima facie showing of that fact.
C. Harmless Error Analysis in Our Appellate Opinion Refuted an Essential Allegation
The question is whether this court’s appellate opinion in Spillman’s direct appeal
refuted, without resort to judicial factfinding, Spillman’s assertion in support of his
petition that he “could not now be convicted of murder because of changes to Penal Code
[s]ection 188, effective January 1, 2019.” Although Spillman stated in a declaration that
he was not the “actual killer” and “did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in the commission of murder
in the first degree”, he did not explicitly state that he did not act with intent to kill or
implied malice.
1. Opinion’s Discussion of the Evidence Presented

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This court’s opinion reflected that evidence of the following facts was presented at
the trial at which a jury found him guilty of second degree murder. In May of 2003, a
driver and sole occupant of a Honda was fatally shot as he drove north on Highway 101.
Three shots, which struck the Honda, were fired from a pickup truck going in the same
direction as the Honda. Spillman was the registered owner of the truck. A female friend
of Spillman was driving because he had been drinking. Spillman was sitting in the
middle, next to the driver, and a second male passenger was sitting to Spillman’s right.
According to the trial testimony of the truck’s second male passenger, when the truck
changed lanes to pass the car, the car also changed lanes.
A husband and wife, who had been traveling in another vehicle on Highway 101,
each testified at trial. The husband, who had been driving, testified that he saw a pickup
truck tailgating a Honda in his rearview mirror. He stated that the Honda and the pickup
passed him on the right, and when the Honda moved over, the pickup “matched speed
with it.” “The pickup ‘moved over close’ to the Honda so that it was within two feet of
it.” The wife “testified that it looked as if the pickup was pursuing the Honda.”
A second male eyewitness who was also driving northbound on Highway 101 in another
vehicle testified that he saw “a car and a pickup that seemed to be chasing one another”
and that “the truck moved to the side of the car and appeared to drop back to match
speeds.”
In their testimony, the eyewitnesses indicated that they saw an arm and hand
holding a gun extended from the driver’s side window of the truck. The husband testified
that “the arm and hand looked like that of a Caucasian male.” The second male
eyewitness, who was traveling separately, testified that the arm, which looked tanned and
had blond hair, was Caucasian and “definitely” male. “The Honda continued a short
distance and stopped.” The husband told his wife to call 911, and the wife acknowledged
at trial that “she told the 911 dispatcher that the shooter was the driver,” whom she
testified was “a female with long dark hair.”

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“An off-duty San Jose police officer who was driving on Highway 101 testified
that he saw the pickup truck driving recklessly” and “tailgating other vehicles in the fast
lane, apparently to get them to change lanes.” “Near San Miguel Canyon Road, the
officer honked at the pickup.”
The second male eyewitness followed the truck when it exited the highway at San
Miguel Canyon Road and called 911. A California Highway Patrol (CHP) officer
assisted in the stop of the pickup truck. “About 10 seconds before the truck stopped, [the
CHP officer] saw the middle seat passenger reach down and to his left.” At trial, the
truck’s second male passenger testified that Spillman told the driver and him, “ ‘Shut up.
Don’t say [any]thing.’ ”
When the truck stopped, officers found the second male passenger was seated on
the right of the front bench seat; Spillman was in the middle and his female friend was in
the driver’s seat. The second male eyewitness who had followed the truck off the
highway “saw the police remove three people from the truck.” “When he saw the
Caucasian man, he thought, ‘that was the arm I saw[.]’ ”19
“[An] officer found a nine-millimeter Smith and Wesson semi-automatic handgun
in a nylon holster under and to the right side of the driver’s seat,” where it “would have
been accessible to the middle passenger.” “The holster strap was snapped over the
gun . . . .” In a pocket on the driver’s side door, the police found a hunting license with
Spillman’s name on it and two gun magazines, each loaded with bullets. Spillman told a
detective that he had the loaded gun in his vehicle “because he ‘just got back from the
19 On appeal, Spillman challenged the exclusion of gang evidence, contending that
“ ‘[t]he trial court erred in excluding evidence that [the female driver] and [the second
male passenger] were Nortenos [because] gang affiliation gave [the second male
passenger] a motive [to] falsely to accuse . . . Spillman of a shooting committed by [the
female driver], and gave [her] a motive to shoot [the victim], who had been wearing
blue.’ ”

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Sierras with my boys[]’ ” and that “there might be gunshot residue in his truck from his
hunting trip.”
At trial, the truck’s second male passenger testified that Spillman had taken a gun
from the glove compartment and pushed the driver forward to the steering wheel. As the
truck passed the other car, Spillman had fired the gun out of the driver’s side window.
“The Honda had bullet strikes in the rear passenger window and front passenger
door frame. The front and rear passenger side windows were shattered.” One of the
three shots fired killed the Honda driver. The fatal shot “entered his body below the top
of his right shoulder, passed through his chest and lodged under the back of his left
armpit.” No gunshot residue was found on Spillman or the second male passenger, but
some was found on the female driver’s left palm and the passenger side of the pickup
truck.
2. Second Degree Malice Murder
Malice murder continues to be a viable theory following Chun and also following
the changes to sections 188 and 189. (See § 188, subd. (a)(3).) “Malice, for the purpose
of defining murder, may be express or implied. (§ 188.) It is express ‘when there is
manifested a deliberate intention unlawfully to take away the life of a fellow creature.’
(§ 188; People v. Mattison (1971) 4 Cal.3d 177, 182.)” (People v. Nieto Benitez (1992) 4
Cal.4th 91, 102 (Nieto Benitez).) “ ‘The act of shooting a firearm toward a victim at close
range in a manner that could have inflicted a mortal wound had the shot been on target is
sufficient to support an inference of an intent to kill.’ (People v. Houston (2012) 54
Cal.4th 1186, 1218.)” (Covarrubias, supra, 1 Cal.5th at p. 892.) Here, a shot fired from
Spillman’s truck was on target and killed the victim.
“[A] murder committed with implied malice requires that the prosecution
demonstrate the defendant in fact acted with malice. [Citation.] The concept of implied
malice has both a physical and a mental component. [Citation.] The physical component
is satisfied by the performance of ‘ “an act, the natural consequences of which are

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dangerous to life.” ’ [Citation.] The mental component . . . involves an act
‘ “deliberately performed by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life. . . .” ’ [Citation.]” (Nieto Benitez,
supra, 4 Cal.4th at pp. 106-107.)
“[S]econd degree murder with implied malice has been committed ‘when a person
does an act, the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life. . . .’ [Citation.]” (Nieto Benitez,
supra, 4 Cal.4th at p. 104, italics added.) “The very nature of implied malice . . . invites
consideration of the circumstances preceding the fatal act. [Citations.]” (Id. at p. 107.)
“The ‘natural consequences’ [citation] of a person’s act in brandishing a firearm
necessarily relate to the context in which the act was committed.” (Ibid.) “An
unintentional shooting resulting from the brandishing of a weapon can be [implied
malice] murder if the jury concludes that the act was dangerous to human life and the
defendant acted in conscious disregard of life. [Citations.]” (People v. Thomas (2012)
53 Cal.4th 771, 814-815.)
Before the 2018 changes to sections 188 and 189 took effect, an aider and
abettor’s liability for murder was “of two kinds.” (People v. McCoy (2001) 25 Cal.4th
1111, 1117 (McCoy).) As the Supreme Court previously explained: “First, an aider and
abettor with the necessary mental state is guilty of the intended crime. Second, under the
natural and probable consequences doctrine, an aider and abettor is guilty not only of the
intended crime, but also ‘for any other offense that was a “natural and probable
consequence” of the crime aided and abetted.’ [Citation.]” (Ibid.) Apart from the
natural and probable consequences doctrine, a person may be liable as a direct aider and
abettor of an offense when the “person aids and abets the commission of a crime when he
or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the
intent or purpose of committing, encouraging, or facilitating the commission of the

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offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of
the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) Direct aider and abettor
liability for murder remains unchanged under current law.
“[Direct] [a]ider and abettor liability [for a homicide offense] is premised on the
combined acts of all the principals, but on the aider and abettor’s own mens rea.”
(McCoy, supra, 25 Cal.4th at p. 1120.) “Moreover, the dividing line between the actual
perpetrator and the aider and abettor is often blurred. It is often an oversimplification to
describe one person as the actual perpetrator and the other as the aider and abettor. When
two or more persons commit a crime together, both may act in part as the actual
perpetrator and in part as the aider and abettor of the other, who also acts in part as an
actual perpetrator.” (Ibid.) “The aider and abettor doctrine merely makes aiders and
abettors liable for their accomplices’ actions as well as their own. It obviates the
necessity to decide who was the aider and abettor and who the direct perpetrator or to
what extent each played which role.” (Ibid.; see People v. Amezcua and Flores (2019) 6
Cal.5th 886, 917 [“[I]n a homicide prosecution not involving felony murder or the natural
and probable consequences doctrine, the aider/abettor’s guilt is based on the combined
acts of all the principals and on the aider/abettor’s own knowledge and intent”];
Thompson, supra, 49 Cal.4th at p. 118 [finding that “regardless of who was the actual
shooter, the evidence reasonably supports the inference that defendant assisted the
robbery and murder by providing the gun”].) In these circumstances, “each person’s guilt
would be based on the combined actus reus of the participants, but also solely on that
person’s own mens rea. Each person’s level of guilt would ‘ “float free.” ’ [Citation.]”
(McCoy, supra, at p. 1121.)
As the Supreme Court clarified in McCoy, “The statement that an aider and abettor
may not be guilty of a greater offense than the direct perpetrator, although sometimes true
in individual cases, is not universally correct. . . . If the mens rea of the aider and abettor
is more culpable than the actual perpetrator’s, the aider and abettor may be guilty of a

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more serious crime than the actual perpetrator.” (McCoy, supra, 25 Cal.4th at p. 1120.)
The court quoted a professor’s explanation of these principles with respect to homicide:
“ ‘An accomplice may be convicted of first-degree murder, even though the primary
party is convicted of second-degree murder or of voluntary manslaughter. This outcome
follows, for example, if the secondary party, premeditatedly, soberly and calmly, assists
in a homicide, while the primary party kills unpremeditatedly, drunkenly, or in
provocation. Likewise, it is possible for a primary party negligently to kill another (and,
thus, be guilty of involuntary manslaughter), while the secondary party is guilty of
murder, because he encouraged the primary actor’s negligent conduct, with the intent that
it result in the victim’s death.’ (Dressler, Understanding Criminal Law [(2d ed.1995)]
§ 30.06[C], p. 450.)” (Ibid., fn. omitted.)
Traditionally, “[a]ider and abettor liability under the natural and probable
consequences doctrine does not require assistance with or actual knowledge and intent
relating to the nontarget offense, nor subjective foreseeability of either that offense or the
perpetrator’s state of mind in committing it. (People v. Nguyen (1993) 21 Cal.App.4th
518, 531 [inquiry is strictly objective and does not depend on defendant’s subjective state
of mind].) It only requires that under all of the circumstances presented, a reasonable
person in the defendant’s position would have or should have known that the nontarget
offense was a reasonably foreseeable consequence of the act aided and abetted by the
defendant. (Ibid.)” (People v. Chiu (2014) 59 Cal.4th 155, 165-166, superseded by
statute as stated in People v. Lopez supra, 38 Cal.App.5th at p. 1103, review granted.)
Thus, before the changes in the law, “if a person aid[ed] and abet[ted] only an intended
assault, but a murder result[ed], that person [might] be guilty of that murder, even if
unintended, if it [was] a natural and probable consequence of the intended assault.
[Citation.]” (McCoy, supra, 25 Cal.4th at p. 1117.) As indicated, the issue whether the
doctrine has been entirely abrogated with respect to second degree murder is pending
before the Supreme Court. (See ante, fn. 4.)

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3. Our Appellate Opinion’s Harmless Error Analysis
We recognized in our 2009 opinion that the trial court had given a second degree
felony murder instruction based on a violation of section 246, which was no longer valid
under the holding in Chun, supra, 45 Cal.4th at page 1200.20 Nevertheless, this court
found the instructional error harmless beyond a reasonable doubt.
As in Chun, this court faced an alternative-theory error, which occurs “when a
court instructs on two theories of guilt, one correct and the other incorrect.” (People v.
Aledamat (2019) 8 Cal.5th 1, 7, fn. omitted; see id. at p. 10.) “[T]he usual ‘beyond a
reasonable doubt’ standard of review established in Chapman v. California (1967) 386
U.S. 18, 24 (Chapman) for federal constitutional error applies [to alternate-theory error].”
(Id. at p. 3; see id. at pp. 9, 11, 13.) In conducting such harmless-error analysis, the
reviewing court examines the jury’s findings as reflected in its verdict and “the entire
cause, including the evidence, and consider[s] all relevant circumstances.” (Id. at p. 13.)
“[T]he reviewing court is not limited to a review of the verdict itself.” (Ibid.)
Our appellate opinion indicates that while the evidence regarding the identity of
the actual shooter was in conflict, some basic facts in the case were not. Spillman was
the registered owner of a pickup truck, which was traveling in the same direction as a
Honda on Highway 101. An arm with a hand holding a gun extended out of the driver’s
side window of the truck, while it drove alongside the Honda. Three shots, one of them
fatal, were fired at close range at the Honda. Spillman was aware that he had a loaded,
semi-automatic handgun in the truck, and after the truck was stopped following the
20 Our opinion stated: “The trial court instructed the jury that it could convict
[Spillman] of second degree murder if it found that [Spillman] had killed [the victim] by
committing a felony inherently dangerous to human life” and that “a violation of Penal
Code section 246, discharging a firearm at an occupied motor vehicle, is a felony
inherently dangerous to human life.” It also recognized that the jury was “instructed that
a violation of Penal Code section 246 has two elements, ‘One, a person unlawfully
discharged a firearm at an occupied motor vehicle. And two, the discharge of the firearm
was willful and malicious.’ ”

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shooting, the gun was found in a holster under the seat in a location accessible to
Spillman, who was sitting between the driver and the only other passenger. The jury
specifically found that the killing was perpetrated by means of shooting a firearm from a
motor vehicle intentionally at another person outside of the vehicle with the intent to
inflict great bodily injury.
The jury was instructed on multiple theories of culpability for murder, and as the
reviewing court in Spillman’s direct appeal, we did not know the theory upon which each
of the jurors had relied. A jury “need not decide unanimously whether [the] defendant
was guilty as the aider and abettor or as the direct perpetrator. [Citations.]” (Santamaria,
supra, 8 Cal.4th pp. 918-919.) “Not only is there no unanimity requirement as to the
theory of guilt, the individual jurors themselves need not choose among the theories, so
long as each is convinced of guilt. Sometimes, . . . the jury simply cannot decide beyond
a reasonable doubt exactly who did what. There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt that he was the aider and
abettor, but no such doubt that he was one or the other.” (Id. at p. 919.)
We recognized in our 2009 opinion that the jury that found Spillman guilty of
second degree murder was instructed on second degree murder with malice aforethought.
As reflected in that jury’s verdict, and as stated in our opinion, the jury also found the
section 190(d) enhancement allegation to be true.21 (See ante, fn. 3.) Thus, the jury
made a specific finding that the actual killer shot a firearm from the truck, intentionally at
21 This court stated in its opinion that the jury was instructed on the section 190(d)
allegation as follows: “ ‘It is also alleged in a special allegation that applies to second
degree murder that the defendant perpetrated a murder by means of shooting a firearm
from a motor vehicle intentionally at another person outside of the vehicle with the intent
to inflict great bodily injury. If you find the defendant guilty of second degree murder,
you must determine whether: One, the murder was perpetrated by means of shooting a
firearm from a motor vehicle. Two, the perpetrator intentionally shot the firearm at
another person or persons outside the vehicle. And three, the perpetrator shot the firearm
specifically intending to inflict great bodily injury.’ ”

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another person outside of the truck, with the intent to inflict great bodily injury. In the
opinion, we reasoned: “As to those jurors who believed [that Spillman] was the shooter,
the erroneous felony murder instruction was harmless beyond a reasonable doubt. The
jury was instructed on a valid theory of conscious-disregard-for-life malice, and on the
evidence presented, no juror could have found felony murder without also finding
conscious-disregard-for-life.”
The jury was given former CALJIC No. 3.01, which stated the principles of direct
aiding and abetting. The jury was also instructed on liability for murder under the natural
and probable consequences doctrine on a theory that Spillman had aided and abetted a
violation of section 417.3. Under section 417.3, “[e]very person who, except in self-
defense, in the presence of any other person who is an occupant of a motor vehicle
proceeding on a public street or highway, draws or exhibits any firearm, whether loaded
or unloaded, in a threatening manner against another person in such a way as to cause a
reasonable person apprehension or fear of bodily harm is guilty of a felony . . . .”
Spillman argued on appeal that “the instructions and evidence ‘offered the jury the
easy alternative of finding that his actions in handing the pistol to [the driver] - or doing
whatever he did in the truck - aided and abetted a violation of section 417.3.’ ”
Spillman maintained that the jury verdict revealed “ ‘nothing except that the jury may
have found [that he] aided and abetted a violation of section 417.3.’ ” As indicated, there
was evidence from which jurors may have inferred that Spillman, if not the actual
shooter, at least participated in the shooting by providing his loaded gun to the driver,
who was sitting next to him, moments before it happened. In finding the erroneous
felony murder instruction harmless beyond a reasonable doubt, we also concluded that
under the circumstances, “[n]o juror could have found that [Spillman] participated in this
shooting, either as a shooter or as an aider and abettor, without also finding that
[Spillman] committed an act that is dangerous to life and did so knowing of the danger
and with conscious disregard for life-which is a valid theory of malice.”

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The trial court was entitled to rely upon that harmless-error analysis in assessing
whether Spillman had made a prima facie showing of entitlement to relief under
section 1170.95. It is not manifest from the record that in ruling on the sufficiency of
Spillman’s showing, the trial court engaged in impermissible judicial factfinding of
disputed facts. Regardless of whether it did, the opinion refuted Spillman’s allegation
that he could not be convicted of second degree murder under section 188 as amended,
effective January 1, 2019. That is because any allegation indicating that Spillman did not
aid and abet the killing with implied malice was necessarily refuted by our opinion’s
“harmless beyond a reasonable doubt” analysis.
DISPOSITION
The order denying Spillman’s petition pursuant to section 1170.95 is affirmed.

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_________________________________
ELIA, J.
WE CONCUR:
_______________________________
PREMO, Acting P.J.
_______________________________
BAMATTRE-MANOUKIAN, J.
People v. Spillman
H047057

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