Filed 9/30/26 P. v. Conn CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102726
Plaintiff and Respondent,
(Super. Ct. No. 11F00158)
v.
JOSEPH LEE CONN,
Defendant and Appellant.
In 2013, a jury convicted defendant Joseph Lee Conn of first degree
murder, attempted murder, and attempted robbery, and it found true a robbery-murder
special-circumstance allegation. The trial court sentenced defendant to life without
the possibility of parole plus nine years.
In 2024, defendant filed a petition for resentencing under Penal Code
section 1172.6. 1 The trial court denied the petition at the prima facie stage.
Defendant now contends the jury instructions and associated verdicts do
not establish his ineligibility for relief under section 1172.6 as a matter of law.
The People agree that remand is appropriate on defendant’s murder conviction,
but not his attempted murder conviction. Agreeing with the People, we will reverse
1 Undesignated statutory references are to the Penal Code.
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and remand as to defendant’s murder conviction, but otherwise affirm the trial court’s
order.
BACKGROUND
On New Year’s Eve 2011, defendant, Arsenio Barajas, Jaime Sandoval,
Tamicia DeSoto, and Bryan Smith devised a plan to rob money and drugs from D.F.’s
backyard shed and possibly his house. (People v. Conn (March 25, 2016; C073933)
[nonpub. opn.] (Conn).) D.F. lived with his mother, brother B.F., and Scott Hanson;
D.F. had previously sold methamphetamine to Sandoval and DeSoto. (Ibid.)
Defendant’s group expected someone to be home but did not think they would be armed.
(Ibid.) Nevertheless, the group brought a bolt cutter, hammer, crowbar, ax handle, and
broom handle. (Ibid.)
Sometime in the early morning hours of New Year’s Day, defendant and Smith
went into D.F.’s backyard, while Barajas stayed in front and Sandoval stayed with the
car. (Conn, supra, C073833.) When dogs started barking, Hanson ran outside and began
fighting with defendant and Smith. (Ibid.) Defendant hit Hanson in the head with the
bolt cutter at least once, and Hanson fell to the ground. (Ibid.) B.F. and D.F. came into
the backyard and joined the fight. (Ibid.) Defendant and his group eventually fled the
scene. (Ibid.)
Hanson died from three blows to the back of his head. (Conn, supra, C073833.)
B.F. lost his right eye and had skull and facial fractures. (Ibid.)
Defendant, Barajas, Sandoval, Smith, and DeSoto were jointly charged
with the murder of Hanson (§ 187, subd. (a) -- count one) during the attempted
commission of a robbery (§ 190.2, subd. (a)(17)). The information also charged the
same individuals with the attempted murder (§§ 664, 187, subd. (a) -- count two)
and attempted robbery (§§ 664, 211 -- count three) of B.F. DeSoto and Smith
pleaded guilty to multiple charges in exchange for their testimony (Conn, supra,
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C073833), and the People filed an amended information removing them from the
allegations.
The case was collectively tried before three separate juries, one for each
remaining defendant. The trial judge instructed the juries in pertinent part:
“Whenever the word defendant is used in these instructions it applies to the defendant
whose trial you were assigned to hear—Arsenio Barajas, Joseph Conn, or Jamie
Sandoval.” (Italics omitted.) The trial court further instructed the jury regarding
defendant’s intent (CALCRIM Nos. 225, 251, 705, 3426), accomplice testimony
(CALCRIM Nos. 335, 708), direct aiding and abetting (CALCRIM Nos. 400, 401),
and uncharged conspiracy (CALCRIM No. 416).
The jury was instructed as part of CALCRIM No. 400 that “[u]nder some specific
circumstances, if the evidence establishes aiding and abetting of one crime, a person may
also be found guilty of other crimes that occurred during the commission of the first
crime.” (CALCRIM No. 400.) In addition, the uncharged conspiracy instruction stated
in pertinent part: “A member of a conspiracy is criminally responsible for the acts or
statements of any other members of the conspiracy done to help accomplish the goal of
the conspiracy.” That instruction referenced a conspiracy to commit robbery or burglary
“with one or more of the other defendants or Tamicia DeSoto or Bryan Smith” and
provided, “You may not find the defendant guilty under a conspiracy theory unless all of
you agree that the People have proved that the defendant conspired to commit at least one
of these crimes, and you all agree which crime he conspired to commit. . . . The
definition of burglary will be given in instruction numbers 1700 and 1800. The definition
of robbery will be given in instruction number 1600.” (CALCRIM No. 416.)
The trial court also instructed the jury on burglary, theft, and robbery utilizing
CALCRIM Nos. 1600, 1700, and 1800, as well as instructions concerning attempts to
commit those crimes. Those instructions referenced “the defendant” and did not refer to
perpetrators, co-conspirators, accomplices, or other defendants.
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Moreover, the trial court instructed the jury in pertinent part as follows:
“In order for the People to prove that the defendant is guilty of murder under a
theory of felony murder and that the special circumstance of murder committed while
engaged in the commission of attempted robbery is true, the People must prove that the
attempted robbery or attempted burglary and the act causing the death were part of one
continuous transaction. The continuous transaction may occur over a period of time and
in more than one location. [¶] In deciding whether the act causing the death and the
felony were part of one continuous transaction, you may consider the following factors:
[¶] . . . 6. Whether the felony was the direct cause of the death; [¶] AND [¶] 7.
Whether the death was a natural and probable consequence of the felony.” (CALCRIM
No. 549, original italics.)
“The defendant is charged in Count One with murder, under a theory of felony
murder. [¶] To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that: [¶] 1. The defendant attempted to commit robbery
or burglary; [¶] 2. The defendant intended to commit robbery or burglary; [¶] AND
[¶] 3. While attempting to commit robbery or burglary, the defendant caused the death
of another person. [¶] A person may be guilty of felony murder even if the killing was
unintentional, accidental, or negligent. [¶] To decide whether the defendant attempted to
commit robbery or burglary, please refer to the separate instructions that I have given you
on those crimes. You must apply those instructions when you decide whether the People
have proved first degree murder under a theory of felony murder. [¶] The defendant
must have intended to commit the felony of robbery or burglary before or at the time that
he caused the death.” (CALCRIM No. 540A.)
“The defendant is charged in Count Two with attempted murder. [¶] To prove
that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The
defendant took at least one direct but ineffective step toward killing another person; [¶]
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AND [¶] 2. The defendant intended to kill that person.” (CALCRIM No. 600.) The
jury was not instructed on natural and probable consequences attempted murder.
The trial court’s instructions on the robbery-murder special circumstance stated
as follows: “If you decide that the defendant is guilty of first degree murder but was not
the actual killer, then, when you consider the special circumstances of attempted
robbery, you must also decide whether the defendant acted either with intent to kill or
with reckless indifference to human life. [¶] In order to prove this special circumstance
for a defendant who is not the actual killer but who is guilty of first degree murder as an
aider and abettor or a member of a conspiracy, the People must prove either that the
defendant intended to kill, or the People must prove all of the following: [¶] 1. The
defendant’s participation in the crime began before or during the killing; [¶] 2. The
defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant
participated in the crime, he acted with reckless indifference to human life.” (CALCRIM
No. 703.)
“The defendant is charged with the special circumstance of murder committed
while engaged in the commission of attempted robbery in violation of Penal Code
section 190.2(a)(17). [¶] To prove that this special circumstance is true, the People must
prove that: [¶] 1. Defendant attempted to commit, or aided and abetted, or was a
member of a conspiracy to commit robbery; [¶] 2. The defendant intended to commit,
or intended to aid and abet the perpetrator in committing, or intended that one or more
members of the conspiracy commit robbery; [¶] 3. The defendant did an act that caused
the death of another person; [¶] AND [¶] 4. The act causing the death and the
attempted robbery were part of one continuous transaction. [¶] To decide whether the
defendant attempted to commit robbery, please refer to the separate instructions that I
have given you on that crime. To decide whether the defendant aided and abetted a
crime, please refer to the instructions that I have given you on aiding and abetting. To
decide whether the defendant was a member of a conspiracy to commit a crime, please
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refer to the separate instructions that I have given you on conspiracy. You must
apply those instructions when you decide whether the People have proved this
special circumstance. [¶] The defendant must have intended to commit, or aided and
abetted or been a member of a conspiracy to commit the felony of robbery before or at
the time of the act causing death. [¶] In addition, in order for this special circumstance
to be true, the People must prove that the defendant intended to commit robbery
independent of the killing. If you find that the defendant only intended to commit murder
and the commission of attempted robbery was merely part of or incidental to the
commission of that murder, then the special circumstance has not been proved.”
(CALCRIM No. 730.)
In May 2013, the jury found defendant guilty of the first degree murder of Hanson
and found true that “the defendant committed the crime of first degree murder while
engaged in the attempted commission of the crime of robbery … .” The jury also found
defendant guilty of the attempted murder and attempted robbery of B.F. Those verdict
forms did not require the jury to identify whether defendant was convicted as a direct
perpetrator, an aider and abettor, or as a co-conspirator.
In 2024, representing himself, defendant filed a petition for resentencing under
section 1172.6. A supporting declaration averred, among other things, that defendant was
22 years old at the time of the offenses, younger than his codefendants, unaware of any
grave risk of death, not recklessly indifferent to human life, and not otherwise determined
beyond a reasonable doubt “to have the degree of culpability now required for a murder
or attempted murder.” Defendant denied that he acted with intent to kill or that he
personally killed the victim.
The People opposed the petition, arguing relief was precluded because defendant
was the actual killer, or alternatively, aided and abetted the killer with the intent to kill
and intended to kill the attempted-murder victim. Defendant’s reply argued his record
of conviction did not establish every element necessary to sustain his convictions
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and that factual disputes prevented the trial court from denying his petition as a matter
of law.
The trial court found the record of conviction established that defendant was the
actual killer. It also found that section 1172.6 was only applicable to attempted murder
premised on the natural and probable consequences doctrine, and defendant’s jury had
not been so instructed. Accordingly, the trial court denied defendant’s petition for
resentencing at the prima facie stage.
DISCUSSION
Defendant contends the jury instructions and associated verdicts do not establish
his ineligibility for relief under section 1172.6 as a matter of law.
A
“In 2018, the Legislature amended the law of homicide, eliminating several
theories of liability based on imputed malice. It has also offered relief to those
convicted under certain homicide theories, such as murder or attempted murder under
the natural and probable consequences doctrine, whose convictions are now tainted.
(Pen. Code, § 1172.6, subd. (a).)” (People v. Patton (2025) 17 Cal.5th 549, 556).)
Pertinent to this case, Senate Bill No. 1437 (2017-2018 Reg. Sess.) added section 189,
subdivision (e), providing felony-murder liability only if the defendant (1) was the actual
killer; (2) was not the actual killer but, with intent to kill, aided, abetted, or assisted the
actual killer in the commission of first degree murder; or (3) was a major participant in
the underlying felony and acted with reckless indifference to human life. (People v.
Curiel (2023) 15 Cal.5th 433, 448 (Curiel); People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).)
The Legislature also enacted former section 1170.95 (now 1172.6), which
provided a mechanism for individuals previously convicted of murder to show their
entitlement to retroactive relief under the legislative changes. (Curiel, supra, 15 Cal.5th
at p. 440.) Senate Bill No. 775 (2021-2022 Reg. Sess.) expanded eligibility to
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individuals convicted of attempted murder under the natural and probable consequences
doctrine. (People v. Muhammad (2024) 107 Cal.App.5th 268, 275 (Muhammad).)
A section 1172.6 petition may be filed by “[a] person convicted of felony murder
or 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, attempted murder under the natural and probable consequences doctrine, or
manslaughter” when certain specified conditions apply. (§ 1172.6, subd. (a).) An
individual convicted under prior law may petition to vacate the conviction and be
resentenced on any remaining counts, if he or she could not now be convicted of murder
or attempted murder because of the changes made by Senate Bill No. 1437. (§ 1172.6,
subd. (a); People v. Strong (2022) 13 Cal.5th 698, 708-709 (Strong); Lewis, supra,
11 Cal.5th at pp. 959-960.) Upon receipt of a petition containing all required
information, the trial court must appoint counsel to represent the petitioner, if requested.
(§ 1172.6, subd. (b)(3).) The trial court must also set a briefing schedule and hold a
prima facie hearing. (§ 1172.6, subd. (c).) If the trial court determines that petitioner has
made a prima facie case for relief, it must issue an order to show cause and conduct an
evidentiary hearing. (§ 1172.6, subds. (c) & (d)(1).)
“[T]he prima facie inquiry under [section § 1172.6,] subdivision (c) is limited.”
(Lewis, supra, 11 Cal.5th at p. 971.) As our Supreme Court has explained: “ ‘ “the court
takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ [Citations.] ‘[A]
court should not reject the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility determination adverse to the
petitioner.” ’ ” (Ibid.)
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Whether the record of conviction shows that petitioner is ineligible for
section 1172.6 relief as a matter of law is a legal question we review de novo. (People v.
Lopez (2022) 78 Cal.App.5th 1, 14 (Lopez).)
B
Based on the jury instructions and related findings in defendant’s record of
conviction, we may conclude the jury determined that defendant “caused” Hanson’s
death, but not that defendant personally killed him. (CALCRIM Nos. 540A, 730).
The findings do not establish that defendant was the actual killer. (Lopez, supra,
78 Cal.App.5th at pp. 16-19.) Likewise, as recognized in Strong, supra, 13 Cal.5th 698,
the jury’s true finding on the robbery-murder special circumstance (CALCRIM No. 703)
does not establish defendant’s ineligibility because that 2013 finding predated the
California Supreme Court’s clarifications regarding the phrases “major participant” and
“reckless indifference to human life.” (Strong, at p. 721.)
In addition, the trial court’s instruction that “[u]nder some specific circumstances,
if the evidence establishes aiding and abetting of one crime, a person may also be found
guilty of other crimes that occurred during the commission of the first crime”
(CALCRIM No. 400), when combined with its instruction that “[a] member of a
conspiracy is criminally responsible for the acts or statements of any other member of the
conspiracy done to help accomplish the goal of the conspiracy” (CALCRIM No. 416),
could have allowed the jury to impute malice to defendant for the murder. (People v.
Virgen (2025) 110 Cal.App.5th 440, 452-453.)
Accordingly, we will reverse the trial court’s denial of defendant’s resentencing
petition as to his murder conviction and direct the trial court to issue an order to show
cause and hold an evidentiary hearing.
C
Regarding the charge of attempted murder, the jury was instructed on theories that
defendant was the actual perpetrator or a direct aider and abettor. (CALCRIM Nos. 400,
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401, 600.) The jury was not instructed on the natural and probable consequence doctrine.
(CALCRIM Nos. 402, 403.) Based on the plain language of section 1172.6, defendant is
ineligible for relief under the statute as a matter of law. (See, e.g., Muhammad, supra,
107 Cal.App.5th at p. 276 [“with respect to attempted murder, section 1172.6 affords
relief only to a person convicted under the natural and probable consequences doctrine”];
People v. Coley (2022) 77 Cal.App.5th 539, 548 [same].)
Defendant acknowledges that his record of conviction does not include
instructions on a natural and probable consequence theory. But he asks us to reject
authorities such as Muhammad and Coley and instead conclude based on legislative
history that the Legislature intended to allow defendants to seek relief if they were
convicted of attempted murder under any theory that imputed malice.
We decline defendant’s invitation. Section 1172.6 expressly authorizes relief to
individuals convicted of “attempted murder under the natural and probable consequences
doctrine.” (§ 1172.6, subd. (a).) The statute utilizes this limiting phrase twice.
(§ 1172.6, subd. (a), (a)(1).) There is no ambiguity in the statutory language supporting a
review of legislative history to determine its meaning. (People v. Carter (1996)
48 Cal.App.4th 1536, 1540.)
Defendant suggests our interpretation might violate equal protection, but because
he does not provide any analysis of the assertion, we do not discuss it. Furthermore,
because defendant’s jury was not instructed on the natural and probable consequence
doctrine, he has not made a prima facie showing by arguing that CALCRIM Nos. 400
and 416 allowed the jury to convict him of attempted murder without a finding that he
specifically intended to kill B.F.
The trial court did not err in determining as a matter of law that defendant is
ineligible for relief as to his attempted murder conviction.
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DISPOSITION
The trial court’s denial of defendant’s section 1172.6 petition at the prima facie
stage is reversed as to his murder conviction and otherwise affirmed. The trial court is
directed to issue an order to show cause as to the murder conviction and hold further
proceedings consistent with applicable law.
/S/
MAURO, Acting P. J.
We concur:
/S/
MESIWALA, J.
/S/
WISEMAN, J. *
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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