DISCUSSION

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) amended the felony murder rule and 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 959.) Senate Bill 1437 also 2 added section 1170.95, which provides procedures “for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Lewis, supra, at p. 957.) A subsequent amendment to former section 1170.95 extended relief to defendants convicted of manslaughter or attempted murder based on the natural and probable consequences doctrine. (Sen. Bill No. 775 (2021–2022 Reg. Sess.) Stats. 2021, ch. 551, § 2.) After receipt of a section 1172.6 resentencing petition, counsel shall be appointed upon the petitioner’s request. (§ 1172.6, subd. (b)(1)–(3).) The prosecutor must then file a response to the petition, and the petitioner may file a reply. (§ 1172.6, subd. (c).) The trial court shall then “hold a hearing to determine whether the petitioner has made a prima facie case for relief.” (Ibid.) Appellate counsel suggests we consider whether the trial court erred in denying Jessee’s resentencing petition at the prima facie hearing. At this initial hearing 2 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

3 the trial court may rely on the record of conviction. (People v. Lewis, supra, 11 Cal.5th at pp. 970–971.) “The record of conviction will necessarily inform the trial court’s prima facie inquiry under [former] section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” (Id. at p. 971.) Instructions given to the jury at the petitioner’s trial may be relied on by the trial court as part of the record of conviction at the prima facie hearing. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055.) Here, Jessee’s appellate counsel concedes section 1172.6 precluded resentencing relief as to Jessee’s conspiracy to commit murder conviction in count 1. As to Jessee’s murder conviction, we agree with the trial court’s finding Jessee has not made a prima facie showing for relief under section 1172.6. A review of the record of conviction shows the jury was not instructed on any theory of liability for murder that allowed malice to be imputed to Jessee. Specifically, with respect to the murder for financial gain special circumstance, the jury received CALCRIM 720 which required them to find: “1. The defendant intended to kill; AND 2. The killing was carried out for financial gain.” Additionally, the jury received CALCRIM 702, which stated in part, “If you decide the defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstance of Murder for Financial Gain, you must also decide whether the defendant acted with the intent to kill.” We presume jurors are “able to understand and correlate instructions and are further presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Since the record of conviction established Jessee was not convicted under a vicarious liability theory, relief was properly denied by the trial court.

4 After independently reviewing the entire appellate record, we find no arguable issue.

DISPOSITION

The postjudgment order denying the resentencing petition is affirmed.

MOTOIKE, J.

WE CONCUR:

O’LEARY, P.J.

GOETHALS, J.

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