We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

Mandatory Resentencing under section 1172.6 does not apply where a negative finding on one special circumstances allegation does not negate potential murder liability on other viable theories

People v. Guillory (Cal. Ct. App., Aug. 17, 2022, No. A161952) 2022 WL 3442330, at *1–5

Summary: Guillory, convicted in 2004 of kidnapping, carjacking, robbing, and murder argued that  she qualifies for relief under the new felony murder resentencing law law because the jury rejected a special circumstances allegation regarding the kidnapping. She asserts this finding triggered section 1172.6, subdivision (d), which mandates vacatur and resentencing “[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony.” (§ 1172.6, subd. (d)(2).)

The Court of Appeal found that there  were viable bases for murder liability independent of the rejected special circumstances allegation. Therefore, 1172.6, subdivision (d)(2) cannot plausibly be read to mandate automatic vacatur of the murder conviction and resentencing. The Court also reject Guillory’s claim that Proposition 57 applies retroactively to her case under People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).

Changes to felony murder law

Participants in a felony that results in a killing can be found guilty of felony murder only if they were an actual killer, acted with the intent to kill, or were major participants in the underlying felony and acted with reckless indifference to human life. (§ 189, subds. (e)(1)-(3).)

Senate Bill 1437 effective January 1, 2019, changed the law relating to accomplice liability for murder to better align punishment with individual culpability. The bill eliminated the natural and probable consequences doctrine as to murder and narrowed the felony murder exception to the malice requirement. (People v. Mancilla (2021) 67 Cal.App.5th 854.)

Senate Bill 1437 amended section 189 to require that the perpetrator of a felony murder was either (1) the actual killer; (2) aided and abetted the killer with the intent to kill; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as those terms are used in the statute defining felony murder special circumstances.  It also created, through former section 1170.95 (now section 1172.6), a process for offenders convicted under the former felony murder rule to petition the trial court to vacate their conviction and for resentencing if they could not have been convicted of murder under the amended statutes. A person convicted of murder, attempted murder, or manslaughter prior to Senate Bill 1437 may seek retroactive relief under this provision if (1) the information or indictment allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or any other theory under which malice is imputed based solely on the defendant’s participation in a crime; and (2) the petitioner could not be convicted of murder under current law. (§ 1172.6, subd. (a).)

If the petitioner satisfies these requirements, the court must issue an order to show cause and hold a hearing at which the prosecutor is required to prove beyond a reasonable doubt that the petitioner is guilty of murder under current law. (§ 1172.6, subds. (c), (d).) The parties may rely on admissible evidence in the record of conviction or offer additional evidence. (§ 1172.6, subd. (d)(3).) If the prosecutor fails to sustain its burden of proof, the court must vacate the murder conviction and resentence the petitioner on the remaining charges. (§ 1172.6, subd. (d)(3).)

Jury instructions on theories of murder

The jury was instructed on theories of malice murder, felony murder, and aiding and abetting. It convicted Guillory of first degree murder, first degree robbery, kidnapping for purposes of robbery, kidnapping for purposes of carjacking, simple kidnapping, carjacking, and child endangerment. The jury also returned a not true finding on a special circumstance allegation that Guillory committed the murder during the course of a kidnapping. It failed to reach a verdict on two other special circumstance allegations: murder during a robbery, and murder during a carjacking. The court sentenced Guillory to 25 years to life for first degree murder, and imposed and stayed concurrent terms on the other counts.

 Guillory petitioned for resentencing pursuant to the then newly-enacted section 1170.95 (now section 1172.6). The court found Burton was the actual killer and that Guillory (1) aided and abetted the murder with the intent to kill; and (2) was a major participant in the robbery and carjacking who acted with reckless indifference to human life. Accordingly, she was ineligible for relief under section 1172.6.

The court further found that the not-true finding on the kidnapping allegation did not change this result. Guillory could be convicted of felony murder under current law based on the robbery and carjacking special circumstances allegations, which were not foreclosed by the negative finding on the kidnapping allegation. She could Alonso  be convicted of murder on an aiding and abetting theory independently of the felony murder rule. It therefore denied her petition.

Guillory contends the not-true finding on the kidnapping allegation entitles her to resentencing as a matter of law under subdivision (d)(2) of section 1172.6.

Assuming arguendo that the jury found Guillory did not act with reckless indifference or was not a major participant in the kidnapping because it rejected the kidnapping allegation, which incorporated the reckless indifference/major participant elements. (See § 190.2, subds. (a)(17), (d); People v. Flint (2022) 75 Cal.App.5th 607. (Flint) [holding acquittal on special circumstances allegation is a “prior finding” under section 1172.6, subdivision (d)(2)]

But the negative finding on the kidnapping allegation does not entitle Guillory  to resentencing even though she could be convicted under other, still valid theories of murder. Guillory remains directly liable as an aider and abettor under the amended law because she intended Curtis’s death. (§§ 189, subd. (e)(2), 1172.6, subd. (a)(3).) The jury’s rejection of the kidnapping allegation and its deadlock on the remaining special circumstance allegations do not  preclude a subsequent court or jury from finding her guilty of felony murder based on her participation in the robbery and carjacking. (See § 954 [acquittal of one or more counts is not deemed an acquittal of any other count]; People v. Hatch (2000) 22 Cal.4th 260, 270-273, 92 Cal.Rptr.2d 80, 991 P.2d 165 [dismissal does not bar future prosecution absent a showing that it was for insufficient evidence].) Guillory could be convicted of murder under current law, and she therefore falls outside the class of defendants that may benefit from the Legislature’s decision to narrow liability for murder in other circumstances. (See § 1172.6, subd. (a)(3).)

Guillory asserts the language of section 1172.6, subdivision (d)(2) nonetheless compels relief as a matter of law. It states: “If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” The Court of Appeal disagreed. While courts generally defer to statutory language, we will not do so if it would subvert the legislative intent, produce absurd consequences, or render other parts of the statute surplusage. (Flint, supra, 75 Cal.App.5th at p. 617, 290 Cal.Rptr.3d 522; Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340, 14 Cal.Rptr.3d 857, 92 P.3d 350, superseded by statute on another ground in McCormick v. Public Employees’ Retirement System (2019) 41 Cal.App.5th 428, 436, 254 Cal.Rptr.3d 221.)

Under Guillory’s construction, where a jury finds one or more special circumstances allegations to be not true but deadlocks on others, section 1172.6, subdivision (d)(2) mandates vacatur and resentencing even if the jury could also have found beyond a reasonable doubt that the petitioner was the actual killer (§ 189, subd. (e)(1)); aided and abetted the murder with the intent to kill (§ 189, subd. (e)(2)); or was a major participant who acted with reckless indifference in committing a felony underlying a special circumstances allegation on which the jury deadlocked. (§ 189, subd. (e)(3).)

Guillory’s theory contravenes the Legislature’s decision to limit relief to offenders who could not be convicted of murder under current law (§ 1172.6, subd. (a)(3)), contradicts in some cases the Legislature’s decision to retain some forms of felony murder liability under section 189, subdivision (e), and turns on its head the Legislature’s intention to better align the punishment for murderers with their individual culpability.

Section 1172.6, subdivision (d)(2) is more reasonably understood to require automatic vacatur and resentencing where a special circumstances allegation found to be not true (or the legal equivalent, see People v. Ramirez (2019) 41 Cal.App.5th 923, 926-927, 930, 254 Cal.Rptr.3d 670) provides the only viable ground for a murder conviction.

Retroactive application of Proposition 57

Guillory, a minor when she committed her life crime , argues the issuance of the order to show cause pursuant to section 1172.6, subdivision (c) entitles her to retroactive application of Proposition 57, an ameliorative enactment that, if applicable, would require remand for a transfer hearing to address whether she should have been tried as a juvenile. (See Lara, supra, 4 Cal.5th at pp. 303-304.)

Proposition 57 applies retroactively to all cases in which the judgment was not final when the proposition went into effect.  After briefing was completed in this case, our Supreme Court held in People v. Padilla (2022) 13 Cal.5th 152, 162-163,  that a final judgment becomes nonfinal for purposes of Lara retroactivity when the sentence is vacated on collateral attack. Padilla explains that  at that point the trial court regains jurisdiction to consider the appropriate punishment and the defendant regains the right to appeal the new sentence.  Conversely, filing a collateral attack does not make a judgment nonfinal.

An order to show cause under section 1172.6 does not vacate the petitioner’s sentence but, like the habeas petition in Padilla, sets in motion proceedings to determine whether the petitioner is entitled to vacatur and resentencing. The original judgment remains final until that determination is made. Guillory is thus ineligible for retroactive relief under Proposition 57.


The order denying the petition is affirmed.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.

Contact Information