Filed 11/9/26 P. v. Rainey CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E087520
v. (Super.Ct.No. FSB1103711)
TYRELL JAMES RAINEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace. Affirmed.
Tyrell James Rainey, in pro. per.; and Allen G. Weinberg, under appointment by
the Court of Appeal, for Defendant and Appellant.
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No appearance for Plaintiff and Respondent.
Defendant and appellant Tyrell James Rainey appeals from an order of the San
Bernardino County Superior Court denying his Penal Code section 1172.6 petition for
resentencing.1 We will affirm.
BACKGROUND
The Events Leading to Defendant’s Conviction
In 2011, Mauricio Guandique and his roommates threw a party in their second
story apartment. They invited Michelle Z. and her sister, who invited Eric Moss, who in
turn invited defendant. At the party, a heated argument started between some of the party
attendees, including Guandique, a guest (Gilbert Salazar), defendant, and Moss.
Guandique and Salazar told defendant and Moss to leave, and Guandique asked Michelle
Z. to give them a ride. Defendant told Guandique and Salazar in effect that they should
not kick them out because they knew where Guandique and his friends lived, a remark
that was understood to be a threat.
When defendant and Moss were in Michelle Z.’s car, defendant told Moss that, if
Guandique and Salazar did not call and apologize for their disrespect, he “ ‘would take
care of it,’ ” that all he had to do was make a call. When Michelle Z. became upset about
the threats defendant was making, defendant told her that girls like her get into trouble
and get hurt for protecting their friends.
1 All statutory references are to the Penal Code.
2
Ten minutes after Moss was dropped off at his home, defendant called him to say
they were going back to the apartment. Defendant, who had donned a black beanie, was
waiting with Jerome Allen when Moss joined them, and Allen was dressed in black and
was holding an object wrapped in a towel.
The object Allen had was placed in the trunk of a car driven by defendant’s
girlfriend, who drove the three men back to the apartment building, where a weapon was
removed from the trunk. Defendant ran upstairs and banged on the apartment door three
times and ran back down to the bottom of the stairs where Allen and Moss were waiting.
A man attending the party, Sean Ceballos, opened the door and seeing no one there went
down the stairs followed by Guandique.
When Ceballos and Guandique reached the bottom of the stairs, defendant and
Moss were on either side of Allen, who was wearing a white hockey mask and was
holding a rifle. The person standing on the left of Allen took a swing at Ceballos and the
person on Allen’s right took a swing at Guandique. When Ceballos turned to leave, Allen
shot him, causing an injury that left Ceballos permanently paralyzed and with no
sensation below his chest.
Defendant Is Charged and Convicted
A jury convicted defendant of premeditated and deliberate attempted murder,
finding that he acted willfully, deliberately, and with premeditation, and that he knew a
principal was armed with a firearm in the commission of the attempted murder.
Defendant admitted committing the crime when he was free on bail. The trial court
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sentenced defendant to a four-term (two determinate terms of two years each) to run
consecutive to a life term. We affirmed the judgment. (People v. Rainey (Nov. 4, 2014,
E058265) [nonpub. opn.] (Rainey I).)
The instructions given to the jury during defendant’s trial on the attempted murder
charge included not only those setting forth the elements of attempted murder, explaining
the concepts of deliberation and premeditation, aiding and abetting principles and crimes
for which an aider and abettor could be found guilty, but also an instruction regarding the
natural and probable consequences doctrine.
The Natural and Probable Consequences Doctrine Is Eliminated and Defendant’s
Subsequent Petition for Resentencing Results in This Appeal
In 2018, the Legislature amended sections 188 and 180 to, inter alia, eliminate the
natural and probable consequences doctrine in cases of first and second degree murder as
it applies to aiding and abetting. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
The Legislature also added section 1172.6 to provide a procedural mechanism for
defendants to petition for retroactive relief if they could no longer be convicted of murder
because of the amendments.2 (Lewis, supra, at p. 959.) Section 1172.6 was amended
effective January 1, 2022, to extend resentencing relief to defendants convicted of
attempted murder under the natural and probable consequences doctrine. (Sen. Bill
2 At the time of its enactment section 1172.6 was numbered section 1170.95. The
provision was later renumbered as section 1172.6 without change in the text (Assem. Bill
No. 200; Stats. 2022, ch. 58, § 10).
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No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551, § 2; § 1172.6, subd. (a)(1);
People v. Rodriguez (2024) 103 Cal.App.5th 451, 457.)
As relevant here, if the natural and probable consequences doctrine was a theory
upon which a defendant’s conviction of attempted murder may have been obtained, then
the defendant is entitled to resentencing relief unless the People establish beyond a
reasonable doubt that the defendant is guilty of attempted murder under the amended law.
Defendant petitioned the trial court for section 1172.6 resentencing relief and the
trial court issued an order to show cause. The People filed a brief in opposition, arguing
that defendant could still be convicted of premeditated attempted murder (and the special
allegations) and the cause had never been a natural and probable consequences case. At
the ensuing hearing, the trial court noted it had reviewed the transcripts of defendant’s
trial, all the evidence, the jury instructions and verdicts , and heard the arguments of the
parties. It found defendant could be convicted of attempted murder under current law
and found beyond a reasonable doubt that he attempted to murder Ceballos willfully,
deliberately, and premeditatively, and denied defendant’s petition. Defendant appealed.
We appointed counsel to represent him and granted that counsel’s request for
judicial notice of the records and opinions in defendant’s prior appeals, our case Nos.
E058265 and E072758.
DISCUSSION
On appeal, defendant’s appointed appellate counsel filed an opening brief that sets
forth statements of the case and facts but does not present any issues for adjudication.
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Counsel notes we have discretion under People v. Delgadillo (2022) 14 Cal.5th 216, 232
to conduct an independent review of the record in this appeal and suggests we should
consider exercising that discretion in defendant’s case.
We notified defendant that his counsel had filed a brief stating counsel had not
found an arguable issue, that this court is not required to conduct an independent review
of the record but it may exercise its discretion to do so, and we invited defendant to file
any arguments he deemed necessary on or before September 25, 2025. On October 5,
2025, defendant submitted a 57-page brief, which we accepted and filed.
In his brief, defendant claims (i) the evidence does not support the conclusion that
he willfully, deliberately, and with premeditation aided and abetted Allen in his attempt to
murder the victim, and that the only theory under which he could be found guilty was by
application of the now defunct natural and probable consequences doctrine; (ii) he could
not be found guilty because Allen, the shooter, was acquitted; (iii) the court abused its
discretion when it sentenced him; and (iv) his counsel’s assistance at the resentencing
hearing was ineffective because counsel did not request a jury instruction
(CALCRIM No. 403), which had been given in Allen’s case and resulted in that
defendant’s acquittal. We are not persuaded.
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1. Defendant Could Presently Be Convicted of Attempted Murder Under an
Aiding and Abetting Theory
At defendant’s section 1172.6 hearing, the trial court found defendant “could well
be convicted under today’s law beyond a reasonable doubt,” that the attempted murder of
Ceballos “was committed willfully, deliberately, and premeditatively.”
We agree with the trial court’s assessment. Indeed, in Rainey I we found there was
“substantial evidence to support the [People’s] theory that defendant intended to kill, took
steps beyond mere preparation to kill: he announced his intention by stating that all he
had to do was to make a telephone call to ‘take care of it.’ He made that call, recruiting
the services of Jermaine Allen, who brought a rifle. He called his girlfriend … to drive
himself, Moss, and Allen back to the apartment, where defendant kicked the door of the
apartment to lure the occupants outside, then hid in the bushes, lying in wait for the
occupants to come downstairs. While Moss and defendant manually struck the victim
and Mauricio, engaging their attention, Jermaine Allen, wearing a white hockey mask,
stepped forward and fired the rifle into the chest area of the victim [Ceballos]. Defendant
directly encouraged, facilitated, aided and abetted the attempted murder, harboring both
the specific intent to kill, and committing the requisite acts to constitute the crime.”
(Rainey I, supra, E058265.)
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2. There Is No Support for Defendant’s Claim of Ineffective Assistance of Counsel
Defendant argues his counsel at the section 1172.6 hearing was ineffective because
counsel did not submit the jury instruction that defendant claims the jury relied on when
it acquitted Allen. There is no basis for the claim because the hearing was not a jury trial.
3. Defendant’s Other Claims Cannot Be Reviewed in This Appeal
Defendant’s remaining claims are challenges to his conviction, not the denial of
section 1172.6 petition. The time for seeking appellate review of those issues was in his
appeal from the conviction, and our opinion in that appeal has long since become final.
(Cal. Rules of Court, rule 8.366(b) [with exceptions not applicable here, the decision of a
published opinion of a Court of Appeal becomes final in that court 30 days after its
filing].) Accordingly, we do not have jurisdiction to consider the arguments presented in
defendant’s supplemental brief.
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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RAMIREZ
_____________________________________________________________________________________________________________________________ _________________________________________
P. J.
We concur:
MILLER
_____________________________________________________________________________________________________________________________ _________________________________________
J.
CODRINGTON
_____________________________________________________________________________________________________________________________ _________________________________________
J.
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