P. v. Marshall

1
Filed 5/14/21 P. v. Marshall CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BOBBY GLENN MARSHALL,
Defendant and Appellant.
E073810
(Super.Ct.No. ICSICRF198213646)
OPINION
APPEAL from the Superior Court of Inyo County. Brian J. Lamb, Judge.
Affirmed.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Appellant and defendant Bobby Glenn Marshall challenges the denial of his
petition for resentencing under Penal Code1 section 1170.95, contending that he made a
prima facie showing establishing his eligibility for relief. We find no error and affirm.
FACTUAL BACKGROUND2
“Irmgard F. testified that she and her friends, Walter and Ilse Thiele, husband and
wife, arrived in San Francisco from West Germany on May 30, 1982. The Thieles lived
in Wiesbaden, West Germany, and Irmgard lived in a small town near Ulm, West
Germany. Irmgard and the Thieles had met in 1980 while traveling in the United States.
“The three German tourists rented a silver grey Pontiac automobile for a 3-week
journey to Nevada, Idaho, Wyoming, Arizona and California. They were on their way
back to San Francisco when they arrived in Las Vegas, Nevada, on Sunday night, June
20, 1982. They left Las Vegas on the morning of June 21, 1982, at approximately 10 or
11 a.m., with the intent of driving through Death Valley.
“After passing through Beatty, Nevada, they approached Death Valley Monument.
They stopped, and Irmgard took pictures of the Death Valley Monument sign. The three
Germans then proceeded to a viewpoint inside the Death Valley Monument known as
Hellsgate.
1 All further statutory references will be to the Penal Code unless otherwise noted.
2 The factual background is taken directly from this court’s opinion in People v.
Marshall (Oct. 7, 1985), E000270 [nonpub. opn.], which is included in the record on
appeal.

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“The three German tourists stopped at the Hellsgate viewpoint at approximately 2
p.m. There was another vehicle, a van, at the east end of the parking lot, [and] Irmgard
noticed there was a man near their car talking with Ilse Thiele as the German tourists got
out of their car to take pictures.
“As the Germans prepared to leave, a man approached them holding a gun. The
man with the gun was codefendant Raymond Rather. Ilse Thiele and Irmgard were
already in the car. Walter Thiele got into the car and started the engine. Rather
attempted to enter the right rear door as Walter Thiele started to move the car forward.
Rather ordered Walter Thiele to stop the car and a shot was fired. Ilse Thiele yelled,
‘Walter, stop, I'm hit.’
“Walter stopped and Rather got into the back seat with Ilse Thiele. Ilse was
wounded in the hand. An ice pack and Walter’s T-shirt were applied to Ilse’s injured
hand. Rather ordered Walter Thiele to drive the car back toward Beatty. As they left
Hellsgate, the van followed directly behind them. Defendant Marshall was the driver of
the van. Near the Death Valley Monument sign, Rather directed Walter Thiele to turn
right onto a rocky, dirt road. The van followed. After five or ten minutes, Rather had
Walter stop the car. Rather got out, taking the gun and the car keys with him, and walked
back to the van. After a few minutes, Rather returned and Walter drove on for another
five or ten minutes. Rather had the car stop a second time. Rather again took the gun
and the car keys with him as he went back to talk to defendant in the van.
“Rather returned to the car and they continued driving. Ilse Thiele then told
Irmgard to give Rather their money. She told Irmgard that Rather had said to give him

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the money so they would be freed and could go to a hospital. Irmgard handed $60 to
Rather in the back seat. Walter Thiele also handed over his money pouch from around
his neck. Walter Thiele was carrying $300 to $400 in his money pouch. Irmgard saw the
money and the pouch in Rather’s hand. The car was stopped a third time and Rather
went back to the van as before.
“The car continued again to a fourth stop. There was also a fifth and a sixth stop.
At some point between the third stop and the sixth stop, defendant, driving the van,
collided with the rear of the Pontiac, smashing the car’s taillight.
“At the seventh stop Walter Thiele and Irmgard were taken from the car. Rather
bound their hands with duct tape, which he had obtained from the van. When Irmgard
asked Rather how they would free themselves, Rather responded by placing a knife in the
back pocket of Irmgard’s denim cutoff jeans. Rather took an ice chest, containing soft
drinks, beer, a bottle of Jim Beam whiskey and a bottle of Southern Comfort, from the
car and placed it into the van. Walter Thiele, with his hands bound behind him, was
placed into the left rear seat of the car, and Irmgard, also bound, was placed into the right
rear seat. Rather drove the car. Rather drove on to an eighth stop. At this stop, the van
was parked off the dirt road, and defendant entered the car. Defendant sat in the front
passenger seat and sipped from the bottle of Southern Comfort, taken from the Germans’
ice chest.
“Rather drove onto a side road, but after a while could not continue and had to
back down to the original dirt road. Rather drove on further, and began to drive up a
second hill. After a distance, he could not go further and again had to back down the hill.

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As he backed down the hill, Rather was going too fast and got the car stuck on a rock.
Rather tried to drive the car off the rock, but was unable to do so. Walter Thiele was
taken from the car. Walter had no shirt on, as his undershirt had also been given to Ilse
as a bandage for her injured hand. Irmgard was able to see that Walter was not injured in
any way when the car first became stuck. Irmgard saw defendant standing by Walter
Thiele about two or three meters in front of the car. Rather was out of sight to the rear of
the car. Defendant was holding an open pocket knife. Irmgard heard Walter say, ‘Now
you . . . cut my wrist . . . .’ Irmgard observed two cuts on Walter’s chest and blood
flowing from Walter’s hands.
“After this, Walter Thiele was made to push the car. Since his hands were still
bound, he had to turn around backwards and push the car. The car remained stuck.
Walter was placed back into the car. Defendant took Walter Thiele’s glasses and threw
them away. Defendant also tore a necklace from Irmgard and threw it away, and
defendant threw away Irmgard’s camera.
“The Germans repeatedly asked defendant to cut the tape from Walter Thiele’s
bleeding hands. Defendant finally got out his knife to cut the tape. He permitted Ilse
Thiele to use the knife to cut the tape from Walter’s hands. Defendant took his knife
back as soon as Walter’s hands were free. Then the same procedure was followed to cut
the tape from Irmgard’s hands. Ilse Thiele was allowed to use the knife to cut the tape
from Irmgard’s hands, and defendant immediately took back his knife.
“Somehow the car was finally freed from the rock. Some luggage which had been
taken out of the trunk to get to the car jack was placed on the laps of the three Germans in

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the back seat, restricting their movements. Irmgard asked Ilse Thiele the time. Ilse
showed Irmgard her watch and told her it was 5 p.m.
“Rather drove the car a bit further and then pulled the car off to the left side of the
road. Rather got Walter Thiele out of the car and took him to the left rear of the car.
Rather again bound Walter Thiele’s hands with tape. Rather also taped various parts of
Walter’s body. Defendant taped Ilse Thiele’s and Irmgard’s hands. Defendant put tape
around Ilse Thiele’s body.
“Rather took Walter Thiele about 25 meters from the car. Defendant took Ilse
Thiele all or most of the way to where Rather and Walter Thiele were. Defendant hurried
back to the car when Irmgard called out to Walter and Ilse Thiele and tried to get out of
the car. Defendant got into the car and began to put tape over Irmgard F.’s mouth. As
defendant was taping her mouth, Irmgard looked and saw Rather shoot his gun twice.
The gun was pointed down and forward. There were three or four seconds between shots
and the gun was pointed in slightly different directions for each shot. Irmgard did not
recall hearing the shots, but remembered seeing the movement of the gun being shot.
“Defendant then pulled Irmgard from the car and began to cut her clothes off with
his pocketknife. Soon Rather returned and helped to hold Irmgard’s clothing while
defendant cut it off. Her hands were still bound behind her. Defendant and Rather
wrapped a blouse around Irmgard’s head so she could not see and she was placed on the
trunk of the car, where she was then raped by one of the two men. The first man was
pushed away and she was then raped by the second man. After the second man raped
her, the first man attempted to rape her again. The first man threw Irmgard to the ground,

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and the blouse around her head slipped a little bit so that she could see the first man was
defendant. After defendant had thrown Irmgard to the ground, he again attempted to
have sexual intercourse with her. He also orally copulated Irmgard and forced her to
orally copulate him. After a while, defendant and Rather left with Irmgard in the car.
Defendant sat in the rear seat next to Irmgard. At some point, Rather stopped the car, and
jeans and a shirt were found for Irmgard to put on. As they again proceeded in the car,
defendant continued touching and molesting Irmgard, both before and after she put her
clothes on.
“Rather stopped the car again when they reached the parked van. Defendant drove
the van ahead of the car, and was soon out of sight. After a while, Rather and Irmgard in
the Pontiac came upon defendant and the disabled van on the side of the road. Defendant
then got into the back seat of the car with Irmgard. They returned to the paved road by
the Death Valley Monument sign, and drove to Beatty. [¶] . . . [¶]
“After leaving Beatty, defendant took Irmgard’s clothes off again and continued
attempting intercourse with her, kissing her over her entire body, placing his penis in her
mouth, making her touch his penis with her hand, and putting his finger into her vagina.
“As they entered Tonopah, Irmgard was permitted to put her clothes back on. As
they stopped at a hamburger stand in Tonopah, defendant showed Irmgard his knife and
told her not to say anything. While they were stopped, a sheriff’s deputy came to her
window and motioned for her to roll down the window, which she did. Irmgard then said
to the deputy, ‘Please help me.’ The deputy then opened the door and Irmgard jumped
from the car.”

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PROCEDURAL BACKGROUND
In 1983, a trial court found defendant guilty of two counts of first degree murder
(§ 187, counts 1-2), robbery (§ 211, count 3), kidnapping for robbery (§§ 207, 209,
subd. (b), counts 4-6), rape (§ 261, count 7), and oral copulation (former § 288a, count 8).
Prior to trial, defendant’s case was consolidated with codefendant Rather’s case, and they
waived a jury trial and agreed to have a joint trial with two different judges as finders of
fact. Subsequently, Rather pled guilty to the murder of Walter Thiele, with special
circumstances, while defendant proceeded to trial. In finding defendant guilty of the
murder in count 1, the trial court stated: “The Court finds that it has been established
beyond a reasonable doubt and to a moral certainty that Bobby Glenn Marshall aided and
abetted in each and all of the offenses alleged in Counts [1-6]. The Court therefore finds
it has been established beyond a reasonable doubt and to a moral certainty that on June
21, 1982 . . . defendant Bobby Glenn Marshall, did willfully and unlawfully kill another
human being, to wit, Ilse Thiele with malice aforethought. It is the Court’s finding that
said degree is murder in the first degree.” The court also stated: “The Court finds that it
has been established beyond a reasonable doubt and to a moral certainty that Bobby
Glenn Marshall, in violation of Section 187 of the California Penal Code alleged in Count
II in that said defendant . . . on or about June 21, 1982, did willfully and unlawfully kill
another human being, to wit: Walter Thiele with malice aforethought.” The court also
found true the allegations that a principal was armed with a firearm (§ 12022, subd. (a))
and that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b))
in the commission of all the offenses.

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Defendant filed a motion for new trial, and the court held a hearing at which
Rather testified. The court granted the motion as to counts 2 through 6 but denied it as to
the murder in count 1. However, the court reduced the conviction in count 1 to second
degree murder. Both parties appealed. In defendant’s appeal, this court affirmed the
judgment. (People v. Marshall (Oct. 7, 1985), E000269 [nonpub. opn.].) In the People’s
appeal, this court reversed the order granting a new trial as to counts 2 through 6 and
reducing count 1 to second degree murder. We ordered the judgments of conviction
reinstated and remanded for resentencing. (People v. Marshall, supra, E000270.)
On January 18, 2019, defendant filed, on his own behalf, a petition for
resentencing under section 1170.95, which was enacted by the Legislature through its
passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate
Bill 1437). The petition alleged that he was convicted of first or second degree murder
pursuant to the felony-murder rule or the natural and probable consequences doctrine,
and that he could not now be convicted of first or second degree murder because of the
amendments to sections 188 and 189. With respect to the declaration that he could not be
convicted of first or second degree murder under the amendments, defendant checked
boxes on the form petition stating that he was not the actual killer and that he did not,
with the intent to kill, aid or abet the actual killer in the commission of the murder, and
that he was not a major participant in the felony or he did not act with reckless
indifference to human life during the course of the crime. He requested the court to
appoint counsel for him.

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After receiving the petition, the court appointed counsel. Both the People and
defendant filed informal briefs. The People attached copies of this court’s opinions in
People v. Marshall, supra, E000269 and People v. Marshall, supra, E000270 to its brief.
The court held a hearing on June 18, 2019, took judicial notice of the appellate opinions,
and allowed the parties to be heard. The prosecutor pointed out that the trial court’s
statement of decision, as well as this court’s analysis of the case, showed that the case
was decided on a direct aiding and abetting theory. The court took the matter under
submission.
On September 16, 2019, the court issued a lengthy written order denying
defendant’s petition. It found that defendant established a prima facie case as to the first
two conditions set forth in section 1170.95, subdivision (a)(1) and (a)(2), and stated that
the issue was whether he had established a prima facie case as to the third condition—
that he could not now be convicted of first or second degree murder because of the
amendments to sections 188 and 189. The court found the record of conviction and any
other evidence that might be available “conclusively establish that the defendant ‘could
. . . be’ convicted of first degree murder for the death of both Mr. and Mrs. Thiele,
notwithstanding changes to” sections 188 or 189. The court noted that the newly-enacted
statute did not entitle defendant to “a plenary re-trial on the charges of first-degree
murder of which he stands convicted.” It stated that the “issue for the court for decision,
when an order to show cause is issued and a resentencing hearing is held, is whether the
People can prove, beyond a reasonable doubt, that the petitioner ‘could . . . be’ convicted
of first degree murder under the current law of murder.” The court went on to discuss the

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evidence it believed could be properly considered at a resentencing hearing. It stated:
“But, how can the court know at this stage, what relevant and admissible evidence the
petitioner might adduce at the resentencing hearing? In the court’s view, the petitioner
bears the initial burden in establishing his prima facie case to make an offer of proof of
any evidence, additional to the record of conviction, that the petitioner intends to adduce
at the resentencing hearing to establish his eligibility for post-conviction relief under
Penal Code section 1170.95.” The court also stated: “In this context, that means he has
the burden of showing a prima facie case to establish that the relevant and admissible
evidence contained in the record of conviction, including the testimony of Mr. Rather, is
legally insufficient to sustain convictions for murder in the first degree of Mr. & Mrs.
Thiele on any lawful theory. That burden includes the burden of making an offer of
proof of any evidence at the hearing, not contained in the record of conviction, that the
petitioner might offer to show his eligibility for relief.”
The court asserted that it had no basis to conclude “that any evidence, other than
the testimony of the petitioner and of Mr. Rather, might be adduced by the petitioner at
any resentencing hearing that might be conducted in this case if the court were to issue an
order to show cause.” It then stated, “for these reasons” it found that defendant’s
petition, considered with the relevant evidence in the record of conviction and Rather’s
testimony at the hearing on the motion for new trial, failed to establish a prima facie case
for defendant’s eligibility for resentencing. The court further found that “the evidence
properly before it conclusively establishes an ample and legally sufficient basis to
sustain, under the law of murder as currently formulated, the prior court’s verdict, finding

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the defendant guilty of two counts of murder in the first degree.” The court specifically
stated that the evidence before it showed beyond a reasonable doubt that defendant could
be convicted of first degree murder of both Mr. and Mrs. Thiele, both on the grounds that
he was an aider and abettor with the intent to kill (§ 189, subd. (e)(2)) and that he was a
major participant in the specified felonies who acted with reckless indifference to human
life (§ 189, subd. (e)(3)). It concluded that, given the state of the evidence, “nothing
would be served” by issuing an order to show cause. The court then found that defendant
had failed to establish a prima facie case for relief and denied the petition.
ANALYSIS
The Trial Court Properly Concluded Defendant Was Ineligible for Relief
Defendant argues that the trial court applied an erroneous standard to find that he
failed to make a prima facie showing of eligibility for relief. He contends it erroneously
interpreted section 1170.95, subdivision (a)(3), to say that he was ineligible for relief if
he “ ‘could be convicted’ ” of murder, based on a permissible theory, such as he was a
direct aider and abettor to the murder or he was a major participant who acted with
reckless indifference to human life. Defendant further asserts that he showed eligibility
for relief by simply stating in his declaration that he was convicted of murder based on
either the natural and probable consequences doctrine or first degree felony murder and
could not now be convicted because of changes made to sections 188 and 189. He also
claims that “[n]othing in the record of conviction proved beyond a reasonable doubt that
[he] had intent to kill under a direct aiding and abetting theory.” He concludes that, as
such, the record of conviction does not “contain a disqualifying factor” since the trial

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court could have relied on the natural and probable consequences doctrine or upon a
felony murder theory in finding him guilty of murder.
The People contend that the trial court concluded the issue before it was whether
sufficient evidence supported defendant’s conviction under any valid theory after Senate
Bill 1437, and it required him to make an offer of proof as to additional evidence he
would introduce, if an evidentiary hearing were held. The People assert that the court
surmised the evidence would be the same as it was at trial and at the motion for new trial,
and then found that defendant was either a major participant in the underlying felonies or
was an aider and abettor who had the intent to kill. The People state that the court erred
in denying his petition at the prima facie stage based on judicial factfinding; however, the
error was harmless since the record of conviction shows that his convictions were based
on a finding that he was a direct aider and abettor, who acted with express malice. We
conclude the record of conviction establishes defendant was not eligible for relief; thus,
any error in the court’s extensive order was harmless.
A. Senate Bill 1437
On September 30, 2018, the Governor signed Senate Bill 1437. “The legislation,
which became effective on January 1, 2019, addresses certain aspects of California law
regarding felony murder and the natural and probable consequences doctrine by
amending Penal Code sections 188 and 189, as well as by adding Penal Code section
1170.95, which provides a procedure by which those convicted of murder can seek
retroactive relief if the changes in law would affect their previously sustained
convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722-723 (Martinez).)

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By amending sections 188 (defining malice) and 189 (defining the degrees of
murder), Senate Bill 1437 changed “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); see Martinez, supra, 31 Cal.App.5th at
p. 723.)
Senate Bill 1437 added section 1170.95, which provides that “[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.” (§ 1170.95,
subd. (a).) “A trial court that receives a petition for resentencing under section 1170.95
must follow these steps, in pertinent part: ‘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.’ ” (People v. Nguyen (2020) 53
Cal.App.5th 1154, 1165; see § 1170.95, subd. (c).)

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“Section 1170.95 (c) twice uses the phrase ‘prima facie showing.’ Courts of
Appeal have inferred from the structure of the provision that section 1170.95(c)
contemplates two separate assessments by the trial court of a prima facie showing: one
focused on ‘eligibility’ for relief and the second on ‘entitlement’ to relief.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 975 (Drayton).) In other words, the trial court is
required 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 Section 188 or 189 made effective January 1, 2019.’ ” (Id. at pp. 975-976.)
“If the trial court determines a petitioner has made a prima facie showing of
eligibility for relief, the court proceeds to the ‘second’ inquiry into the prima facie
showing under section 1170.95(c). [Citation.] In this second step, the trial considers
whether the petitioner has made a prima facie showing of entitlement to (rather than
eligibility for) relief.” (Drayton, supra, 47 Cal.App.5th at p. 976.) If the petitioner has
made a prima facie showing that he is statutorily entitled to relief, the trial court “shall
issue an order to show cause.” (§ 1170.95, subd. (c).) The court must then hold a
hearing to determine whether to vacate the murder conviction and to recall the sentence
and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At

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such a hearing, both the prosecution and the defense may rely on the record of conviction
or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).)
We review de novo the question of whether a petitioner has made a prima facie
showing. (See Drayton, supra, 47 Cal.App.5th at p. 981.)
B. The Record of Conviction Shows Defendant Was Not Eligible for Relief
The first sentence in section 1170.95, subdivision (c), refers to an initial prima
facie review to preliminarily determine a petitioner’s statutory eligibility for relief as a
matter of law. (People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar.
18. 2020, S260493.) In this step of review, the trial court determines, based upon its
review of readily ascertainable information in the record of conviction and the court file,
whether the petitioner is statutorily eligible for relief. (Id. at pp. 329-330.) In other
words, “[u]nder section 1170.95, subdivision (c), the court was required to review
defendant’s petition and determine whether he made a prima facie showing that he ‘falls
within the provisions of’ the statute; that is, that he could not be convicted of first or
second degree murder under the law as amended by Senate Bill No. 1437.” (People v.
Lewis (2020) 43 Cal.App.5th 1128, 1137 (Lewis), review granted Mar. 18, 2020,
S260598; see § 1170.95, subds. (a)(3) & (c).) A trial court may “look to a court ruling,
including an appellate opinion, for the nonhearsay purpose of determining the basis of the
conviction.” (People v. Woodell (1998) 17 Cal.4th 448, 459; see People v. Trujillo
(2006) 40 Cal.4th 165, 180 [“[A]n appellate court decision . . . can be relied upon to
determine the nature of a prior conviction because it may disclose the facts upon which
the conviction was based.”].) “A court of appeal opinion, whether or not published, is

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part of the appellant’s record of conviction.” (Verdugo, at p. 333; see Lewis, at pp. 1137-
1138 [in determining the sufficiency of a section 1170.95 petition, the court may review
the record of conviction, which includes the opinion in a defendant’s direct appeal].)
The record of conviction shows that the original trial court found defendant guilty
of first degree murder after hearing the evidence presented at trial. It found “beyond a
reasonable doubt and to a moral certainty” that defendant aided and abetted in the
murders of Walter and Ilse Thiele and willfully and unlawfully killed them “with malice
aforethought.” This clearly demonstrates that the court found him guilty of both murders
on the theory that he aided and abetted the perpetrator with the intent to kill. In other
words, the issue of whether defendant acted as a direct aider and abettor has been
litigated and decided against him. Senate Bill 1437 did not “alter the law regarding the
criminal liability of direct aiders and abettors of murder because such persons necessarily
‘know and share the murderous intent of the actual perpetrator.’ ” (Lewis, supra, 43
Cal.App.5th at p. 1135.) Accordingly, “[o]ne who directly aids and abets another who
commits murder is thus liable for murder under the new law just as he or she was liable
under the old law.” (Ibid.)
Furthermore, this court confirmed that defendant was an active aider and abettor,
who acted with the intent to kill. In defendant’s appeal after the motion for new trial, he
argued that the evidence was insufficient to prove he had the intent required of an aider
and abettor under People v. Beeman (1984) 35 Cal.3d 547. The court in Beeman stated
that “an aider and abettor [must] act with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or

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facilitating commission of, the offense.” (Id. at p. 560.) In our prior opinion, we noted
that, “even after hearing Rather’s testimony, the trial court denied defendant’s motion for
new trial with respect to the murder of Ilse Thiele precisely because defendant led her to
the death spot, knowing that Rather was likely to kill the Thieles.” (People v. Marshall,
supra, E000269 at p. 10.) We also noted that the trial court stated, “ ‘Now it was the
Court’s opinion at the trial that that was aiding and abetting directly at that particular time
into what happened to Ilse. He knew she was going to be killed or suffer something
equivalent and he has to bear the responsibility. . . .’” (People v. Marshall, supra,
E000269 at p. 11, emphasis in original.) We further observed that, “[a]t the ruling on the
motion for new trial after hearing Rather’s testimony, the court repeated, ‘With respect to
Ilse . . . I believe that [defendant] is responsible for murder on the basis of a very active
aider and abettor, and that element has been proved to the Court’s satisfaction beyond a
reasonable doubt. He must stand responsibility [sic] for that.’ ” (Ibid., italics added.)
We observed that “the trial court remained convinced as to the murder of Ilse
Thiele that defendant participated knowingly as an active aider and abettor,” and found
that the trial court “did not abuse its discretion in so finding.” (People v. Marshall,
supra, E000269 at p. 13.) We reversed the court’s order reducing count 1 to second
degree murder and declared that “[t]he killing of Ilse Thiele was patently first degree
murder, either premeditated murder or a killing in the perpetration of a robbery, and
defendant was either guilty of that offense as an aider and abettor or not guilty as to that
offense.” (People v. Marshall, supra, E000270 at pp. 45-46.)

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Therefore, because the record of conviction, specifically our prior opinions in this
case, held that the trial court convicted defendant of murder as a direct aider and abettor
of the murders who acted with malice aforethought, the record clearly demonstrates
defendant could be convicted of murder even after the amendments. Petitioner is unable
to make a prima facie case of entitlement for relief since it has already been determined
by the trier of fact that he directly aided and abetted the perpetrator of the murders with
the intent to kill. Thus, the court properly denied his petition for resentencing under
section 1170.95. (Lewis, supra, 43 Cal.App.5th at pp. 1137, 1139; see Drayton, supra,
47 Cal.App.5th at p. 976.)
DISPOSITION
The court’s order denying defendant’s petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
Acting P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.

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