I. BACKGROUND

In 2007, a jury convicted Ake of three counts of attempted murder (§§ 187, subd.

(a), 664) and one count of shooting at an inhabited dwelling (§ 246). The jury also found

true several enhancements and findings, including that the attempted murders were

willful, deliberate, and premeditated (§ 664, subd. (a)), and Ake was sentenced to a total

term of 105 years to life. In an opinion deciding Ake’s case along with a co-defendant’s,

we corrected a clerical error in the abstract of judgment but otherwise affirmed the 2 judgment. (People v. Ramirez (Mar. 11, 2010, E046699) [nonpub. opn.].)

In 2022, Ake petitioned under section 1172.6. In 2024, the trial court summarily

denied the petition. It stated that Ake was not prosecuted under the felony murder rule or

the natural and probable consequences doctrine. It then also precluded Ake from filing

any future section 1172.6 petitions. It said it would “specifically order[] the Clerk’s

1 Undesignated statutory references are to the Penal Code. 2 In 2025, the trial court struck previously-stayed firearm enhancements tied to the shooting at an inhabited dwelling count.

2 office to shut the door on them and not accept them at all.” The minute order reads:

“Court orders the clerk’s office to REJECT any PC1172.6 Petitions filed by the 3 defendant.”

Two months after submitting his opening brief on appeal, Ake filed a habeas

petition in this court and moved to consolidate the appeal with the petition. We denied

the motion to consolidate but ordered that the habeas petition be considered with the

appeal solely to determine whether an order to show cause should issue. We address the

habeas petition by separate order.

II. DISCUSSION

A. Merits of Section 1172.6 Petition

Effective January 1, 2019, Senate Bill No. 1437 (Senate Bill 1437) (Stats. 2018,

ch. 1015, § 4) amended California’s murder statutes to curtail the use of two theories of

vicarious liability for murder. These theories are grounded in situations where the

defendant intended to commit some crime other than murder, yet a death resulted. The

3 In full, the trial court’s comments were as follows: “So sir, you are not ordered to be transported forthwith back to the Department of Corrections. And if you wish to file an appeal, you may do so, and that would be to the Fourth District Court of Appeals of the decision. “However, sir, you are precluded from filing anymore of these 1172.6 petitions. Just repeatedly filing them here in court will be fruitless. I’m specifically ordering the Court Clerk’s office to reject any 1172.6 petitions that you attempt to refile. This denial, the way to challenge it, is to go to a higher Court of Appeal to somehow find I’m incorrect in my decision. But do not file again an 1172.6 petition. I’m specifically ordering the Clerk’s office to shut the door on them and not accept them at all and return them back to you because I’ve denied this with prejudice.”

3 theories are known as felony murder and the natural and probable consequences doctrine.

Senate Bill 1437 also created a statutory procedure for convicted defendants to benefit

from these changes to the law. This procedure allows eligible defendants to have

convictions based on an abrogated theory of vicarious liability vacated and be

resentenced for other crimes charged or for the charged crime. (§ 1172.6, subds. (a), (d).)

Effective January 1, 2022, Senate Bill No. 775 (Senate Bill 775) (Stats. 2021, ch.

551, § 2) expanded Senate Bill 1437’s petition process to include individuals convicted of

“attempted murder under the natural and probable consequences doctrine.” (§ 1172.6,

subd. (a).) Under the natural and probable consequences doctrine, “a defendant who aids

and abets a confederate in committing a crime (the target offense) is liable for other

crimes committed by the confederate if those further [nontarget] crimes were natural and

probable consequences of the target offense.” (People v. Eynon (2021) 68 Cal.App.5th

967, 973; accord, People v. Smith (2014) 60 Cal.4th 603, 611.) The aider and abettor’s

liability under the doctrine for any nontarget offense is vicarious, meaning that “‘the

nontarget offense is unintended [by the aider and abettor], [so] the mens rea of the aider

and abettor with respect to that offense is irrelevant and culpability is imposed simply

because a reasonable person could have foreseen the commission of the nontarget

crime.’” (See People v. Chiu (2014) 59 Cal.4th 155, 164, superseded by statute on other

grounds as stated in People v. Lopez (2019) 38 Cal.App.5th 1087, 1103.)

4 “We review de novo an order denying a section 1172.6 petition at the prime facie

review stage.” (People v. Flores (2023) 96 Cal.App.5th 1164, 1170; see People v. Berry-

Vierwinden (2023) 97 Cal.App.5th 921, 930.)

Before Senate Bill 1437, including at the time of Ake’s trial, a defendant could be

convicted of attempted murder if the jury found he aided and abetted a target offense for

which attempted murder was a natural and probable consequence. (See People v. Favor

(2012) 54 Cal.4th 868, 879-880, superseded by statute on other grounds as stated in

People v. Hin (2025) 17 Cal.5th 401, 442.) Nevertheless, as the trial court stated, Ake’s

jury was not instructed on the natural and probable consequences doctrine. Rather, it was

instructed solely on a “kill zone” theory. (See People v. Mumin (2023) 15 Cal.5th 176,

193 [“a kill zone is an area which a defendant intentionally creates in order to kill all

those within it to ensure the primary target’s death”]; People v. Nguyen (2024) 103

Cal.App.5th 668, 677 [“In making the prima facie determination, the court may rely on

the record of conviction, including the jury instructions and verdict forms”].) And “if the

jury did not receive an instruction on the natural and probable consequences doctrine, the

jury could not have convicted the defendant on that basis.” (People v. Offley (2020) 48

Cal.App.5th 588, 599; accord, People v. Coley (2022) 77 Cal.App.5th 539, 548.)

Accordingly, Ake is ineligible for relief under section 1172.6 as a matter of law.

Ake does not dispute that the jury was never instructed on the natural and probable

consequences doctrine. Rather, he relies on two other arguments. First, he argues that

“instructions on the kill zone theory should not have been given in the face of insufficient

5 evidence” (italics removed). Second, he argues that section 1172.6, as amended by

Senate Bill 775, should be construed to allow relief for those convicted of “attempted

murder under an imputed malice ‘kill zone’ theory” even though Senate Bill 775

expressly expanded relief only to those convicted of attempted murder under the natural

and probable consequences doctrine.

Neither argument justifies section 1172.6 relief. Ake’s argument that the jury

should not have been instructed on the kill zone theory is an argument of trial error, and

section 1172.6 “does not afford the petitioner a new opportunity to raise claims of trial

error.” (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Ake’s other argument, that

section 1172.6 should be broadly construed to encompass all imputed malice theories,

fails because a kill zone theory is not an imputed malice theory. A “kill zone theory is

only a theory of liability for attempted murder” (People v. McCloud (2012) 211

Cal.App.4th 788, 796, fn. 4), and “express malice,” not imputed malice, is “the mental

state required to convict a defendant of attempted murder.” (People v. Smith (2005) 37

Cal.4th 733, 741.) Thus, even if we were to accept, for the sake of argument, Ake’s

broad reading of the statutory language, he would still not be entitled to relief.

B. Ability to File Future Section 1172.6 Petitions

Turning to whether Ake may petition under section 1172.6 in the future, we find

that the trial court erred in precluding any future petitions.

Both parties frame the issue as whether the vexatious litigant statutes (Code Civ.

Proc., §§ 391-391.7) apply here. To our knowledge, no published case has addressed

6 whether the vexatious litigant statute applies to section 1172.6 petitions, which have been

described as “‘collateral postconviction proceedings’” (People v. Delgadillo (2022) 14

Cal.5th 216, 227). A future court may well hold that the vexatious litigant statutes do not

apply to section 1172.6 petitions. (Cf. People v. Harrison (2001) 92 Cal.App.4th 780,

787 [“The vexatious litigant statutes apply to ‘litigation,’ which is expressly defined as

‘any civil action or proceeding, commenced, maintained or pending in any state or federal

court’”]; In re Bittaker (1997) 55 Cal.App.4th 1004, 1006 [“an inmate who has been

declared a vexatious litigant retains the right to file a petition for writ of habeas corpus”].)

However, we need not decide that issue here, as the trial court never declared Ake a 4 vexatious litigant or otherwise invoked the vexatious litigant statutes.

In any event, the restriction the trial court imposed on Ake, and the way the trial

court imposed the restriction, go beyond the vexatious litigant statutes in significant

ways. A vexatious litigant may file new litigation after obtaining leave from the

presiding justice or presiding judge of the court where the litigation is proposed to be

filed, assuming there is a preexisting order otherwise prohibiting new litigation. (Code

Civ. Proc., § 391.7, subd. (a).) Here, however, the trial court did not just impose the

condition of obtaining prior leave of court before filing another section 1172.6 petition.

The order instructs the court’s clerk’s office to reject any future section 1172.6 petitions

Ake might file, without qualification. Thus, under the order, if a future Legislature were

4 As the People concede, the current section 1172.6 petition is the first one Ake has filed.

7 to expand section 1172.6 relief to those convicted under a kill zone theory, Ake would

not be able to benefit, as his petition would not even be accepted for filing. Moreover,

before being declared a vexatious litigant, a litigant is “entitled” to “a noticed motion, and

a hearing which includes the right to oral argument and the presentation of evidence.”

(Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225.) Here, however, there was no hearing at

all on whether Ake should be deemed a vexatious litigant, as no one had moved for such

a determination.

“[T]here is no dispute that prisoners have a constitutional right of access to the

courts.” (In re Jesusa V. (2004) 32 Cal.4th 588, 601.) Moreover, “absent a

countervailing state interest of overriding significance, persons forced to settle their

claims of right and duty through the judicial process must be given a meaningful

opportunity to be heard.” (Boddie v. Connecticut (1971) 401 U.S. 371, 377.) And

specifically in the context of section 1172.6 (formerly section 1170.95) petitions, our

Supreme Court has noted the costs that meritless petitions might impose. (See People v.

Lewis (2021) 11 Cal.5th 952, 968 [“[S]ome petitioners may nonetheless file petitions

even when they are not eligible for relief. Section 1170.95 is clearly not without expense.

But it is for the Legislature to balance costs with rewards and, here, the Legislature

appears to have concluded that the benefits to be gained from providing broad access to

counsel, in order to ensure that all those entitled to resentencing are able to obtain relief,

outweigh the costs of appointing counsel in many cases where no relief will prove

available.”].) The bottom line is that a court cannot—particularly without an explanation

8 or a hearing—preclude a prisoner like Ake from seeking relief that the Legislature has

sought to extend.

That is not to say that the People and the trial court must relitigate the issue every

time someone in Ake’s position needlessly files successive petitions. Issue preclusion,

sometimes called collateral estoppel, remains available to curb any such abuses, if indeed

a subsequent petition is an improper attempt to relitigate the same issues. (See People v.

Harden (2022) 81 Cal.App.5th 45, 52 [finding collateral estoppel did not bar filing of

second former section 1170.95 petition under forfeiture doctrine and new law

exception].)

The trial court failed to identify any “countervailing state interest of overriding

significance” (Boddie v. Connecticut, supra, 401 U.S. at p. 377) to justify, in the trial

court’s own words, “shut[ting] the door” on potential section 1172.6 relief. In our view,

no such countervailing interest exists. Accordingly, we reverse the trial court’s order

denying Ake’s section 1172.6 petition insofar as it instructs the clerk’s office to reject

future section 1172.6 petitions.

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III. DISPOSITION

The January 5, 2024 order denying Ake’s section 1172.6 petition is reversed to the

extent it prohibits Ake from filing future petitions. In all other respects, the order is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

MILLER

Acting P. J.

CODRINGTON

J.

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