People v. Herrera CA2/4

background” of the case but based its determination of entitlement to relief under section 1172.6 on its “independent review of the record of conviction”].)

2 B. Resentencing Petition In August 2024, Herrera filed a form petition for resentencing under section 1172.6. He checked the boxes indicating (1) the information filed in his case “allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime . . . ;” (2) he was convicted of murder following a trial; and (3) he could not presently be convicted of murder or attempted murder “because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” The People filed a response attaching a copy of Herrera I and the jury instructions given at trial. The People argued Herrera was ineligible for relief under section 1172.6 because the sole theory pursued at trial was that he was the actual shooter and killer of Jones. Herrera’s appointed counsel filed a reply that did not address the jury instructions or jury findings. At a hearing in March…