Filed 9/29/26 P. v. Amos CA1/3
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A169358
v.
FRED LYNN AMOS, (Contra Costa County
Super. Ct. No. 05-910595-8)
Defendant and Appellant.
In 1992, a jury convicted Fred Amos and his codefendant, Donald
Boston, of multiple offenses, including three special circumstance murders.
The judgment was affirmed by a different panel of this court. (People v. Amos
et al. (July 22, 1994, A058843) [nonpub. opn.] (Amos I).) The present appeal
is from a 2023 order denying Amos’s petition to vacate his murder convictions
and resentence him for his other offenses. (Pen. Code, § 1172.6; statutory
references are to the Penal Code, unless otherwise indicated.) Amos argues
the superior court erred by concluding that his record of conviction shows
that he is ineligible for resentencing as a matter of law.
In March 2025, this court affirmed the order denying Amos’s petition.
However, following a grant of review, the California Supreme Court
remanded this matter for reconsideration in light of People v. Morris (2026)
19 Cal.5th 671 (Morris). Applying Morris, we must conclude the record does
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not definitively show that Amos is ineligible for resentencing as a matter of
law. Accordingly, we reverse and remand for further proceedings.
BACKGROUND
In December 1989, several individuals gathered at a mini mart in
Vallejo, ostensibly to conduct a drug deal. (Amos I, supra, A058843 at pp. 5–
9.)1 Days later, three people with connections to the incident were found
dead. (Id. at p. 11.) The following month, two individuals who worked at the
mini mart were placed in a witness protection program. (Id. at pp. 14–15.)
Over a year later, Amos and Boston were charged with multiple offenses
pertaining to these incidents. (Id. at pp. 21–22.) Another individual,
Maurice Jackson, was charged and convicted separately for his role in these
incidents. (See People v. Jackson (2025) 110 Cal.App.5th 128, rev. granted
June 11, 2025, S290577, rev. dismissed (2026) 346 Cal.Rptr.3d 113 (Jackson)
[remanding for order to show cause as to section 1172.6 petition].)
Criminal Charges
In January 1992, the Contra Costa County District Attorney filed an
amended information charging Amos and Boston with multiple offenses,
including the first degree murders of three victims, Castaneda, Blackmon,
and Treas. (§ 187, counts 1–3.) As to all three charges, the information
alleged the special circumstance that Amos committed multiple murders.
(§ 190.2, subd. (a)(3).) The information also alleged three special
circumstances for committing the murders during the commission of another
qualifying felony. (§ 190.2, subd. (a)(17).) Specifically, the prosecution
1 We do not rely on the factual summary in Amos I when assessing
whether Amos failed to make a prima facie case for resentencing relief. (See
People v. Bratton (2023) 95 Cal.App.5th 1100, 1113.) However, we utilize
Amos I to flesh out the procedural history of this case and provide some basic
context.
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alleged Amos and Boston were committing robbery when Castenada and
Treas were murdered, burglary when Castenada and Blackmon were
murdered, and kidnapping when Castenada and Treas were murdered.
In addition to the three murders, the defendants were charged with the
following offenses: kidnapping for robbery (§ 209, subd. (b), counts 4–5);
robbery (§§ 211–212.5, subd. (a), counts 6–7); burglary (§§ 459– former 460.1,
& former 460.2, counts 8–9); vehicle theft (Veh. Code, § 10851, subd. (a),
count 10); conspiracy to commit robbery, burglary, and kidnapping (former
§ 182.1, count 11); and unlawful possession of a concealable firearm by a felon
(§ former 12021, count 12).
Jury Instructions
At trial, the jury was instructed regarding two theories of first degree
murder: deliberate, premeditated killing with malice aforethought; and
felony murder, with robbery and burglary designated as the predicate
offenses. Instructions regarding first degree felony-murder included a
version of CALJIC No. 8.21, which provided: “The unlawful killing of a
human being, whether intentional, unintentional or accidental, which occurs
during the commission or attempted commission of the crime of Robbery or
Burglary is also murder of the first degree when the perpetrator had the
specific intent to commit such crime.”
The jury was instructed regarding principles for establishing aider and
abettor liability, including that those who aid and abet the commission of a
crime are “equally guilty” along with the direct perpetrator; and that an aider
or abettor is a person who aids, promotes, encourages or instigates the
commission of the crime with knowledge of the perpetrator’s unlawful
purpose and with the intent to commit, encourage or facilitate the
commission of the crime. In addition, the jury was instructed that an aider
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and abettor is guilty not just of the “particular crime aided and abetted but is
also liable for the natural and probable consequences of the commission of
such crime.”
Specifically as to an aider and abettor’s liability for first degree felony-
murder, the jury was instructed with former CALJIC No. 8.27: “If a human
being is killed by any one of several persons engaged in the commission or
attempted commission of the crime of Robbery or Burglary all persons, who
either directly and actively commit the act constituting such crime, or who
with knowledge of the unlawful purpose of the perpetrator of the crime and
with the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, aid, promote, encourage, or instigate by act or
advice its commission, are guilty of murder of the first degree, whether the
killing is intentional, unintentional, or accidental.”
Regarding the special circumstance allegations, the jury was instructed
that if they found Amos guilty of first degree murder, they needed to decide
whether the prosecution proved any one of the four special circumstances as
to each murder victim. To assist the jury in making these determinations,
the court used a modified version of CALJIC No. 8.80, which stated in part:
“The People have the burden of proving the truth of a special
circumstance. If you have a reasonable doubt as to whether a special
circumstance is true, you must find it to be not true.
“If you are satisfied beyond a reasonable doubt that the defendant
actually killed a human being, you need not find that the defendant intended
to kill in order to find the special circumstance to be true.
“If you find that a defendant was not the actual killer of a human
being, or if you are unable to decide whether the defendant was the actual
killer, you cannot find any special circumstance to be true as to that
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defendant unless you are satisfied beyond a reasonable doubt that such
defendant with the intent to kill aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted any actor in the commission of the
murder in the first degree.
“In other words, to find any of the four alleged special circumstances to
be true, you must be satisfied beyond a reasonable doubt that the defendant
actually killed a human being or had the specific intent to aid and abet
another in killing even though some other person actually did the killing.”2
Jury Verdicts and Sentence
The jury found Amos guilty of all charges except for one kidnapping for
robbery charge, as to which he was convicted of the lesser offense of
kidnapping. As to each murder conviction, the jury found that Amos used a
handgun during the commission of the offense, and that all of the special
circumstance allegations were true. The jury also found multiple other
firearm use allegations were true.
The charges and special circumstances alleged against Amos were also
charged and alleged against his codefendant, Boston. The jury found that
Boston was guilty of the same offenses that Amos committed, and made
identical findings regarding the special circumstance and gun use allegations
for both defendants. (Amos I, supra, A058843 at p. 22.) The trial court
granted defendants’ motion to sever the penalty phase of trial, and the jury
returned verdicts of life without the possibility of parole for both Amos and
Boston. (Ibid.)
In August 1992, the trial court sentenced Amos to three consecutive life
terms in state prison without the possibility of parole for the three murder
2 The last sentence of this excerpt from the special-circumstance
instruction was an addition to the standard CALJIC instruction.
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convictions, each with consecutive four-year terms for firearm use
enhancements. The court stayed sentences as to all other convictions
pursuant to section 654.
Both defendants filed appeals, which were decided in Amos I. The
Amos I court directed the trial court to modify firearm use enhancements
relating to the murder convictions, by imposing a two-year enhancement for
the murder charged in count 1 and staying enhancements for the other two
murders. (Amos I, supra, A058843 at p. 69.) The judgment was otherwise
affirmed. (Ibid.)
Resentencing: Senate Bill No. 1437
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437), which amended provisions of the Penal Code
pertaining to the felony-murder rule (§ 189) and the natural and probable
consequences doctrine (§ 188). (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).)
Regarding the felony-murder rule, Senate Bill 1437 added section 189,
subdivision (e) (section 189(e)), which states: “A participant in the
perpetration or attempted perpetration of [qualifying felonies] in which a
death occurs is liable for murder only if one of the following is proven:
[¶] (1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] (3) The person was a major participant in
the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”
As to the natural and probable consequences doctrine, section 188,
subdivision (a)(3) now provides: “Except [for felony-murder liability] as
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stated in subdivision (e) of Section 189, in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.”
Senate Bill 1437 “created a special procedural mechanism for those
convicted under the former law to seek retroactive relief under the law as
amended,” by filing a petition for resentencing under section 1170.95, which
was later renumbered as section 1172.6. (People v. Strong (2022) 13 Cal.5th
698, 708 (Strong); see also Lewis, supra, 11 Cal.5th at p. 959.) Pursuant to
section 1172.6, a person previously convicted of murder or attempted murder
may file a resentencing petition “when all of the following conditions apply”:
(1) the charging document filed against the petitioner permitted the
prosecution to proceed under a theory of felony murder, or another theory of
imputed malice; (2) the petitioner was convicted of murder, attempted
murder or manslaughter; and (3) the “petitioner could not presently be
convicted of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)
Amos’s Resentencing Petition
Amos filed his petition for resentencing in June 2022. The People
opposed the petition, contending that the jury’s special circumstance findings
establish Amos is ineligible for relief as a matter of law. Amos disputed this
contention in his reply, arguing that he made a prima facie case for relief
because his record of conviction does not foreclose the possibility that the jury
relied on the natural and probable consequences doctrine and/or a no longer
valid felony murder theory.
In September 2023, the superior court denied Amos’s petition on the
ground that it did not establish a prima facie case for relief. The court found
that the record of conviction establishes Amos’s murder convictions are based
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on a still valid theory of felony murder liability because the jury’s special
circumstance findings establish Amos was either the actual killer or he
engaged in each of the special circumstance felonies with the intent to kill.
In concluding that Amos’s convictions remain valid under current law, the
court relied specifically on People v. Lopez (2023) 88 Cal.App.5th 586 (Lopez),
which was disapproved by our Supreme Court in Morris, supra, 19 Cal.5th at
p. 693, fn. 9.
DISCUSSION
At the prima facie stage of a resentencing matter, the court evaluates
both the petition and the record of conviction to determine whether the
petitioner has made a prima facie case for relief. (Strong, supra, 13 Cal.5th
at p. 708; People v. Williams (2022) 86 Cal.App.5th 1244, 1251; see Lewis,
supra, 11 Cal.5th at p. 971.) “If the petition and record in the case establish
conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition.” (Strong, at p. 708.) If, on the other hand, “the
defendant has made a prima facie showing of entitlement to relief, ‘the court
shall issue an order to show cause.’ ” (Ibid., quoting § 1172.6, subd. (c).)
Denial of a resentencing petition at the prima facie stage is reviewed de novo.
(Williams, at p. 1251.)
This appeal requires us to assess whether petitioner has made a prima
facie showing that he “could not presently be convicted of murder . . . because
of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(3).) There is no dispute that the jury’s findings do not conclusively
establish Amos was the actual killer of any of the murder victims. Thus, the
dispositive issue under section 189 is whether the jury’s special circumstance
findings conclusively establish Amos’s liability for felony murder as a
nonkiller aider and abettor. That is, did the jury necessarily find that if
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Amos was not the actual killer he at least “with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree”? (§ 189(e)(2).)
As our background summary reflects, the jury found that the special
circumstances alleged against Amos were true as to each of the three
murders that Amos was convicted of committing. Amos contends these
findings do not establish his ineligibility for resentencing as a matter of law,
giving two reasons.
First, Amos acknowledges the special circumstances findings show that
the jury found Amos intended to kill the three murder victims. But he posits
that those true findings were separate and apart from the verdicts on the
substantive murder charges, and that the record does not foreclose the
possibility that the jury relied on the natural and probable consequences
doctrine to impute malice and find Amos guilty of the murders in the first
instance. Just “because the jury found intent to kill later does not necessarily
mean it found the same thing earlier,” Amos posits.
This argument fails in light of People v. Curiel (2023) 15 Cal.5th 433
(Curiel), which holds that a finding of intent to kill made pursuant to a
special-circumstance murder allegation is relevant and binding on the
petitioner in a resentencing proceeding. (Id. at pp. 453–460 [addressing a
gang-murder special circumstance]; see also Strong, supra, 13 Cal.5th at
p. 710.) Importantly though, a resentencing petition puts at issue whether
all elements of the murder offense are established by a valid theory (Curiel,
at p. 462; People v. Lopez (2026) 19 Cal.5th 639, 659), which brings us to
Amos’s second argument.
Amos contends that the true findings as to the special circumstance
allegations do not establish that the jury necessarily found his conduct met
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the actus reus required for aiding and abetting murder under section
189(e)(2). Section 189(e)(2) requires proof that a nonkiller defendant not only
intended to kill, but also assisted “the actual killer in the commission of
murder in the first degree.” Until recently, appellate courts were divided as
to the showing required to establish that a defendant’s conduct aided or
abetted “the actual killer” in the commission of a murder.3 In Morris, supra,
19 Cal.5th at page 693, our Supreme Court resolved that split, deciding that
section 189(e)(2) “requires that the nonkiller aid or abet the actual killer in
the lethal act itself, and not just the underlying felony.”
We conclude the record of conviction in this case does not conclusively
show that, if Amos was not the actual killer, he “aided or abetted the actual
killer in the lethal act.” (Morris, supra, 19 Cal.5th at pp. 678, 681.) To find
the special circumstance murder allegations true as to a nonkiller, the jury
had to have found that the defendant aided, abetted or assisted “any actor in
the commission of the murder in the first degree.” CALJIC No. 8.80’s
reference to “any actor” preserves the possibility that the jury found only that
Amos assisted a cohort and not the actual killer. Furthermore, the
instruction’s reference to “the commission of murder in the first degree” may
have caused the jury to consider other instructions they were given defining
first degree murder. Indisputably those instructions included a no-longer
3 Some published authority followed the Lopez case relied on by the
trial court here, which held that Senate Bill 1437 changed only the mens rea
requirement for felony murder and, therefore, under the current and former
law, “assisting a qualifying felony in which a death occurs is the same as
assisting the actual killer in committing first degree murder, and vice versa.”
(Lopez, supra, 88 Cal.App.5th at p. 578; see, e.g., People v. Taito (2025) 115
Cal.App.5th 694, 704, rev. granted Jan. 28, 2026, disapproved in Morris,
supra, 19 Cal.5th at p. 693, fn. 9.) Other courts construed section 189(e)(2) to
require proof that the defendant assisted in the killing act itself. (See, e.g.,
Jackson, supra, 110 Cal.App.5th 128.)
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valid theory of felony murder, which could have led the jury to find that Amos
aided or abetted in the commission of first degree murder without finding
that he assisted in the lethal act itself. These possibilities establish that
Amos is not barred by section 189(e)(2) from making a prima facie showing
that he is entitled to resentencing.
After this matter was remanded to us for reconsideration in light of
Morris, the parties filed supplemental briefs. The People appear to concede
that the record of conviction does not establish Amos was convicted pursuant
to a still valid theory of felony murder under section 189(e). However, they
argue that Morris is inapposite because the special circumstance findings in
this case establish that if Amos was not the actual killer, he was a direct
aider and abettor of the three first degree murders. Although appellate
courts sometimes affirm an order denying resentencing on a ground not
relied on by the superior court (People v. Anaya (2025) 117 Cal.App.5th 615,
622), that avenue is not open to us here because the People’s new theory on
direct aiding and abetting is unpersuasive.
First, the People’s argument that the special circumstance findings
conclusively show that Amos was either the actual killer or a direct aider and
abettor of the three murders is inconsistent with pertinent authority. Case
law establishes that CALJIC No. 8.80 does not require a jury to find a
nonkiller to be a direct aider and abettor in order to find the special
circumstance allegations true. (Curiel, supra, 15 Cal.5th at p. 466; see also
In re Lopez (2023) 14 Cal.5th 562, 587–588; People v. Bocanegra (2026) 122
Cal.App.5th 481, 492–497 (Bocanegra).)
To establish liability for murder “under the theory of direct aiding and
abetting, ‘the prosecution must show that the defendant [1] aided or
encouraged the commission of the murder [2] with knowledge of the unlawful
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purpose of the perpetrator and [3] with the intent or purpose of committing,
encouraging, or facilitating its commission.’ ” (Curiel, supra, 15 Cal.5th at
p. 466; see also In re Lopez, supra, 14 Cal.5th at p. 587.) Thus, the mens rea
element of direct aiding and abetting requires both an intent to kill and
knowledge of the unlawful purpose of the perpetrator. (Bocanegra, supra,
122 Cal.App.5th at p. 492.) While the special circumstance finding
establishes Amos’s intent to kill, “[a]n intent to kill, ‘viewed in isolation,’ does
not establish the required knowledge of the perpetrator’s purpose [citation]
and therefore ‘is insufficient standing alone to render a person culpable for
another’s acts’ under a direct aiding and abetting theory.” (Ibid., quoting
Curiel, supra, 15 Cal.5th at pp. 441, 468.) For this reason, the instruction
falls short of establishing all the elements of direct aiding and abetting. (In
re Lopez, supra, 14 Cal.5th at pp. 587–588; Bocanegra at pp. 494–495.)
Second, the People argue that to the extent the special circumstance
instruction itself did not embrace all elements of direct aiding and abetting,
the jury nevertheless had to find Amos was a direct aider and abettor because
they also received a general instruction regarding aider and abettor liability,
which stated explicitly that aiding and abetting requires “the commission of a
crime . . .[¶]. . .with knowledge of the unlawful purpose of the perpetrator . . .”
This argument fails because neither the special circumstances instruction nor
any other instruction required the jury to have found that Amos was a direct
aider and abettor of the lethal act. Thus, it matters not whether all elements
of direct aiding and abetting were conveyed accurately in a general
instruction. (See In re Lopez, supra, 14 Cal.5th at pp. 587–588 [true findings
as to special circumstance allegations did not necessarily establish defendant
was a direct aider and abettor even though jury received general instruction
regarding aider and abettor liability].)
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Finally, the People’s new theory that the jury could have found the
special circumstance allegations true if they believed Amos was a direct aider
and abettor does not mean that Morris is “inapposite.” In the trial court and
on appeal prior to the remand order, the People consistently acknowledged
that the true findings as to the special circumstance allegations could have
been based on findings by the jury that Amos was an aider and abettor of
felony murder who acted with an intent to kill, and they argued that theory
of murder liability remained valid. Morris rejects this argument and holds
the theory is no longer valid. But that does not change the fact—undisputed
below—that the jury could have relied on it as the basis for finding the
special circumstance allegations were true.
In short, the People’s new theory that Amos may have been a direct
aider and abettor of the murders does not establish that he is ineligible for
resentencing as a matter of law.
DISPOSITION
The order denying Amos’s section 1170.95 petition is reversed. The
matter is remanded to the superior court with directions to issue an order to
show cause and hold an evidentiary hearing on the petition.
TUCHER, P. J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
People v. Amos (A169358)
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