P. v. Boyd

Filed 7/29/20 P. v. Boyd CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
HARRY JACKSON BOYD,
Defendant and Appellant.
B297468
(Los Angeles County
Super. Ct. No. MA007943)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed.
Mays Law Group, Jakgeem Mays and Jarrett Adams for
Defendant and Appellant.

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Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Acting Senior Assistant Attorney General, Idan Ivri and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________________________
INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as
it relates to murder. Under Penal Code section 1170.95,1 a
person who was convicted under theories of felony murder or
murder under the natural and probable consequences doctrine,
and who could not be convicted of murder following the
enactment of SB 1437, may petition the sentencing court to
vacate the conviction and resentence on any remaining counts.
In 1997, a jury convicted appellant Harry Jackson Boyd
of two counts of first degree murder and found robbery-murder
special-circumstances allegations to be true. Following the
enactment of SB 1437, appellant filed a petition under section
1170.95 to vacate his murder convictions. The trial court
summarily denied appellant’s petition, finding him ineligible
for relief based on the jury’s special-circumstance findings,
1 Undesignated statutory references are to the Penal Code.

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which according to the court, showed the jury found that he
had aided and abetted the murders with the intent to kill.
Appellant challenges this conclusion on appeal, arguing
that the jury was confused and did not necessarily find he had
acted with the intent to kill. We conclude the trial court
correctly denied appellant’s petition and therefore affirm.
BACKGROUND2
In 1996, the Los Angeles County District Attorney’s office
charged appellant and his co-defendant, Terry Tyrone Evans,
with two counts of first degree murder. As relevant here, the
information alleged that appellant and Evans committed the
murders while engaged in the commission of a robbery for
purposes of section 190.2, subdivision (a)(17).3 According to
the People’s evidence at trial, appellant and Evans planned
2 We have granted respondent’s request to take judicial notice
of, inter alia, the record in appellant’s prior appeal (People v. Evans
and Boyd (Sept. 24, 1998, B113243) [nonpub. opn.]), and in his
habeas corpus proceeding before this court (In re Boyd (B281063),
den. May 25, 2017). Appellant’s motion to augment the record is
denied as moot.
3 Section 190.2, subdivision (a), lists special circumstances
under which a person convicted of first degree murder shall be
sentenced to death or imprisonment in the state prison for life
without the possibility of parole. (Ibid.) One of those special
circumstances is the commission of first degree murder in the
course of a robbery. (Id. at subd. (a)(17).) For a person who was not
the actual killer, this special circumstance applies only if he aided
and abetted the murder, acting with the intent to kill, or was a
major participant in the robbery and acted with reckless
indifference to human life. (Id. at subds. (c) & (d).)

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and executed the robbery-murders together, but it was
undisputed that Evans alone shot and killed the victims.
Appellant testified in his defense that although he was present
when Evans committed the murders, he was not involved in
the crimes.4
At the conclusion of trial, the court instructed the jury
under CALJIC No. 3.00, which provided that “principals” liable
for a crime included “[t]hose who actively and directly commit
the act constituting the crime” and “[t]hose who aid and abet
the commission of the crime.” In describing the liability of an
aider and abettor, the court instructed the jury on the natural
and probable consequences doctrine.5 As to the robbery-
murder special-circumstance allegations, the court instructed
the jury under CALJIC No. 8.80.1, inter alia: “If you find
4 While both parties devote substantial portions of their briefs
to the evidence at trial, we find it unnecessary to do so, in light of
the jury’s findings on the special-circumstance allegations. As the
parties acknowledge, the convictions, including the findings, are
long since final.
5 “Under the natural and probable consequences doctrine, ‘[a]n
aider and abettor is guilty not only of the intended, or target, crime
but also of any other crime a principal in the target crime actually
commits (the nontarget crime) that is a natural and probable
consequence of the target crime.’” (People v. Vega-Robles (2017) 9
Cal.App.5th 382, 433-434, quoting People v. Smith (2014) 60 Cal.4th
603, 611.) Thus, prior to SB 1437’s enactment, if a person aided
and abetted only an intended assault, but a murder resulted, that
person would be guilty of murder “‘“if it [wa]s a natural and
probable consequence of the intended assault.”’” (People v. Smith,
supra, at 611.) As discussed further below, SB 1437 eliminated the
natural and probable consequences doctrine as it relates to murder.

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that a defendant was not the actual killer . . . , you
cannot find the special circumstance to be true . . .
unless you are satisfied beyond a reasonable doubt that
such defendant[,] with the intent to kill[,] aided [and
abetted] . . . any actor in the commission of murder in
the first degree.” (Bolding added.)
During deliberations, the jury sent two notes to the court.
First, the jury requested a definition of the phrase “actively
and directly commit the act” in CALJIC No. 3.00. After
conferring with counsel, the court declined to further define
the phrase. Next, the jury asked whether it was required to be
unanimous in deciding what made a person a “principal” for
purposes of CALJIC No. 3.00. The court answered that the
jury need not be unanimous on this issue.
The jury then found both appellant and Evans guilty as
charged, and found the special-circumstance allegations to be
true. Appellant was sentenced to two terms of life without the
possibility of parole, plus four years. We affirmed the
judgment of conviction in an unpublished opinion. (People v.
Evans and Boyd, supra, B113243.)
Appellant subsequently filed a petition for writ of habeas
corpus in the superior court, contending, among other things,
that under People v. Chiu (2014) 59 Cal.4th 155 (Chiu), it was
prejudicial error to instruct the jury on the natural and
probable consequences doctrine.6 The court denied the
6 Under Chiu, supra, 59 Cal.4th at 158-159, “an aider and
abettor may not be convicted of first degree premeditated murder
under the natural and probable consequences doctrine.” (Ibid.)
(Fn. is continued on the next page.)

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petition, reasoning that the jury’s special-circumstance
findings established that it necessarily had found appellant
aided and abetted the murders with the intent to kill, and
therefore that it did not rely on the natural and probable
consequences doctrine. Appellant then filed a habeas petition
in this court, raising the same contentions. We summarily
denied that petition.
In 2019, appellant filed a petition under section 1170.95
to vacate his convictions, alleging he was convicted of murder
under the natural and probable consequences doctrine, and
claiming he could not be convicted of that offense following SB
1437’s enactment. The trial court summarily denied the
petition, again relying on the jury’s special-circumstance
findings to conclude the jury necessarily had found appellant
aided and abetted the murders with the intent to kill. The
court therefore found appellant ineligible for relief under
section 1170.95. Appellant timely appealed.
DISCUSSION
A. SB 1437’s Limitation of Accomplice Liability for
Murder and Petitions for Relief Under Section
1170.95
The Legislature enacted SB 1437 “to amend the felony
murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder
Chiu’s holding applies retroactively on collateral review. (In re
Lopez (2016) 246 Cal.App.4th 350, 360.)

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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(f).) SB
1437 amended section 189 to provide that a participant in
qualifying felonies during which a death occurs generally will
not be liable for murder unless that person was (1) the actual
killer, (2) a direct aider and abettor in first degree murder,
acting with the intent to kill, or (3) a major participant in the
underlying felony, acting with reckless indifference to human
life.7 (§ 189, subd. (e).) SB 1437 also amended section 188’s
definition of malice for purposes of murder to provide that
“[m]alice shall not be imputed to a person based solely on his
or her participation in a crime.” (§ 188, subd. (a)(3).) As a
result, the natural and probable consequences doctrine can no
longer support a murder conviction. But direct aider and
abettors to first degree murder, acting with the intent to kill,
remain liable for that offense even after SB 1437. (See § 189,
subd. (e)(2).)
SB 1437 also added section 1170.95 to the Penal Code.
This section permits individuals who were convicted of felony
murder or murder under a natural and probable consequences
theory, and who could not be convicted of murder following SB
7 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have known
that the victim was a peace officer engaged in the performance of
the peace officer’s duties.” (§ 189, subd. (f).)

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1437’s changes to sections 188 and 189, to petition the
sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).) The parties
debate the exact procedures the statute prescribes to
determine a petitioner’s eligibility for relief, but it is clear that
a petitioner must make a prima facie showing of entitlement to
relief before the court is obligated to issue an order to show
cause and hold a subsequent hearing.8 (See § 1170.95, subd.
(c) [“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”].)
B. The Trial Court’s File Conclusively Shows
Appellant Is Ineligible for Relief
Appellant challenges the summary denial of his petition,
arguing he has made a prima facie showing of entitlement to
relief under section 1170.95. Relying in part on the superior
court’s instruction on the natural and probable consequences
doctrine at his trial, he contends that the jury could have found
him guilty under that now-invalid theory of liability. Because
the trial court denied appellant’s petition without holding an
evidentiary hearing, we review its ruling de novo. (Cf. In re
Stevenson (2013) 213 Cal.App.4th 841, 857 [where trial court
resolves habeas proceeding without evidentiary hearing or
8 We need not decide the precise procedures the statute affords
because as explained below, the record conclusively shows appellant
was ineligible for relief.

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makes findings based only on documentary evidence, review is
de novo].)
The trial court correctly concluded appellant was
conclusively ineligible for relief under section 1170.95 based on
the jury’s special-circumstance findings.9 At appellant’s trial,
the court instructed the jury under CALJIC No. 8.80.1 that it
could not find the robbery-murder special-circumstance
allegations to be true as to a defendant who was not the actual
killer unless he aided and abetted the murder with the intent
to kill. As it was undisputed that appellant was not the actual
killer of either of the victims, the jury’s findings that these
special-circumstance allegations were true leave no doubt that
it found appellant had aided and abetted the first degree
murders of both victims with the intent to kill. (See People v.
Yeoman (2003) 31 Cal.4th 93, 139 [jurors presumed to
understand and follow court’s instructions].) These findings
rendered appellant ineligible for relief under section 1170.95.10
9 Appellant does not argue the trial court erred in looking to its
file in considering his eligibility for relief. He has therefore
forfeited any contention in this regard. (Browne v. County of
Tehama (2013) 213 Cal.App.4th 704, 726 [failure to raise argument
in opening brief constitutes forfeiture].) We note that the question
whether courts may consider this material in reviewing a petition
under section 1170.95 is currently pending before our Supreme
Court in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
March 18, 2020, No. S260598.
10 In summarily denying appellant’s habeas petition, in which
he argued that the jury was erroneously instructed on the natural
and probable consequences doctrine, we cited People v. Covarrubias
(2016) 1 Cal.5th 838, 902, fn. 26 (Covarrubias). There, our Supreme
(Fn. is continued on the next page.)

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(See § 1170.95, subd. (a) [petitioner must show he could not be
convicted of murder following SB 1437’s changes to §§ 188 and
189]; § 189, subd. (e)(2) [aider and abettor to first degree
murder, acting with intent to kill, may be convicted of murder];
cf. People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 420
[defendant ineligible for relief under SB 1437 on direct appeal
where jury had found robbery-murder special-circumstance
allegation true].)11
Court held that even when the jury is instructed on both valid and
invalid theories of guilt, reversal of a conviction is unwarranted if
the record reveals beyond a reasonable doubt that the jury relied on
the valid theory. (Ibid.) Our citation to Covarrubias indicated our
conclusion that the jury’s special-circumstance findings established
beyond a reasonable doubt that the jury did not rely on the natural
and probable consequences doctrine in finding appellant guilty.
The same conclusion holds true in this proceeding.
11 Citing People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020, S262835 (Smith), appellant asserts juries’
special-circumstance findings cannot support definitive conclusions
on petitioners’ eligibility for relief under section 1170.95. Smith
does not stand for this proposition. There, a jury convicted the
petitioner of first degree murder under a theory of felony murder,
and found true a robbery-murder special circumstance based on the
conclusion that the defendant was a “major participant” in the
robbery and acted with “reckless indifference to human life.”
(Smith, supra, at 93.) The conviction and special circumstances
finding were affirmed on appeal. (Id. at 89.) Following the decision
on direct appeal but before the petitioner filed his section 1170.95
petition, our Supreme Court narrowed the meanings of “major
participant” and “reckless indifference to human life.” (Smith, at
93.) Because the petitioner’s jury had not been asked to resolve the
factual issues our Supreme Court had since identified as
controlling, the Smith court concluded the jury’s findings could not
(Fn. is continued on the next page.)

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Appellant argues the jury’s special-circumstance findings
are unreliable because the jury’s submitted notes during
deliberations suggested it was confused about the court’s
instructions. We disagree that the jury’s findings are
unreliable.
During deliberations, the jury requested a definition of
the phrase “actively and directly commit the act” in CALJIC
No. 3.00, and later asked whether it was required to be
unanimous in deciding what made a person a “principal” for
purposes of that instruction.12 Whatever these submissions
might have suggested about the jury’s understanding of the
term “actively and directly commit” in CALJIC No. 3.00, they
suggested no confusion about the term “actual killer” in
CALJIC No. 8.80.1. Nothing indicated the jury found
appellant was the victims’ actual killer, as would eliminate the
intent-to-kill requirement for purposes of the robbery-murder
special-circumstance allegation -- it was undisputed that he
was not. The superior court’s instruction under CALJIC No.
8.80.1 was clear and easy to understand, and we presume the
establish the petitioner’s ineligibility for relief under section
1170.95 as a matter of law. (Smith, at 93-94.)
Unlike the petitioner in Smith, appellant identifies no
intervening change in the law applicable to his jury’s special-
circumstance findings. Thus, Smith is inapplicable to him.
12 As noted, the superior court instructed appellant’s jury under
CALJIC No. 3.00, which provided that “principals” liable for a crime
included “[t]hose who actively and directly commit the act
constituting the crime” and “[t]hose who aid and abet the
commission of the crime.”

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jury followed it. (See People v. Yeoman, supra, 31 Cal.4th at
139.)
In addition to suggesting the jury was confused,
appellant relies on a version of events the jury manifestly
rejected to argue that “neither the murder convictions nor the
special-circumstance findings are supported by substantial
evidence.” As appellant concedes, however, “this Court cannot
reverse his convictions.” Neither can we reverse the special-
circumstance findings. Simply put, the jury could not have
returned those findings without determining that appellant
aided and abetted in the murders of two people with the
specific intent to kill. Accordingly, the trial court properly
denied appellant’s petition for relief under section 1170.95.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.

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