Filed 7/17/26 P. v. Hammond CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B350717
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XCNBA152037)
v.
RICHARD HAMMOND,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Clay Jacke II, Judge. Affirmed.
Richard Hammond, in pro. per.; Eric R. Larson, under
appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
________________________
A jury convicted Richard Hammond of first degree murder
and two counts of attempted premeditated murder. Thereafter,
Hammond petitioned for resentencing under Penal Code section
1172.6,1 which limited accomplice liability for some murder-
related crimes. The trial court denied the petition at the prima
facie stage on the ground that the record of conviction established
Hammond was not convicted under an invalid theory of murder
liability. Hammond appeals from the order denying his petition.
His appellate counsel filed a brief under People v. Delgadillo
(2022) 14 Cal.5th 216. We directed counsel to provide a copy of
the record to Hammond, and Hammond filed a supplemental
brief. We affirm the order denying Hammond’s petition.
BACKGROUND
This case arises out of a gang-related drive-by shooting in
which a witness identified Charles Morgan as the shooter and
Hammond as a passenger who yelled a gang challenge.2
1 All further undesignated statutory references are to the
Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2 The background is from this division’s opinion affirming
Hammond’s judgment of conviction on direct appeal, People v.
Morgan and Hammond (Sept. 17, 2002, B142609) [nonpub. opn.]
(Hammond). (See generally People v. Lewis (2021) 11 Cal.5th
952, 972 (Lewis) [appellate opinion generally part of record of
conviction in § 1172.6 proceedings].) We reference the evidence
described therein only “for background purposes and to provide
context for the parties’ arguments.” (People v. Flores (2022) 76
Cal.App.5th 974, 978, fn. 2, disapproved on another ground in
People v. Patton (2025) 17 Cal.5th 549, 569.) We do not rely on
2
A jury convicted Hammond of first degree murder (§ 187,
subd. (a)) and two counts of attempted willful, deliberate and
premeditated murder (§§ 664, 187, subd. (a)). The jury also found
true as to the murder count the special circumstance allegation
that it was intentional and perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person or
persons outside the vehicle with the intent to inflict death
(§ 190.2, subd. (a)(21)). The jury found personal gun use
allegations not true as to all counts.
The same jury convicted codefendant Morgan of the same
crimes and allegations, except it found true personal gun use
allegations as to him.
In 2000, a court sentenced Hammond to life without parole
for the murder count and two consecutive life terms for the
attempted murder counts.
This division affirmed Hammond’s judgment of conviction
on direct appeal. (People v. Hammond, supra, B142609.) In
affirming, the appellate court rejected an argument that the trial
court’s improper instruction on the drive-by special circumstance
allegation required reversal. That is, the trial court had
incorrectly instructed the jury it could find a drive-by special
circumstance allegation true if it found either that Hammond had
the intent to kill or he acted with reckless indifference to human
life as a major participant.3 The appellate court noted that the
these facts in assessing whether the trial court properly
concluded that Hammond failed to make a prima facie showing of
eligibility for resentencing. (Flores, at p. 988.)
3 The trial court instructed the jury that if it found a
defendant guilty of first degree murder, it had to determine
3
prosecutor likely exacerbated the error by stating in closing
argument that “you have to decide that he acted with reckless
indifference to human life and that is defined here. [¶] The
defendant acts with reckless indifference to human life when that
defendant knows or is aware his acts involve a grave risk of death
to a human being. [¶] You have to believe whatever his level of
aiding and abetting was that made him a major participant when
he did participate in this, he knew there was a grave risk of
death to another human being before you can find a special
circumstance.” The appellate court found the instructional error
to be harmless beyond a reasonable doubt because the jury was
correctly instructed on first degree murder and on attempted
premeditated murder. (Ibid.)
In 2023, Hammond filed a form section 1172.6 petition for
resentencing. Later, appointed counsel filed a second petition,
whether the murder was committed by the intentional discharge
of a firearm from a motor vehicle with the intent to inflict death.
(CALJIC No. 8.80.1.) The instruction further stated, “If you find
that defendant Hammond was not the actual killer of a human
being, or if you are unable to decide whether the defendant was
the actual killer or an aider and abettor, you cannot find the
special circumstance to be true as to defendant Hammond 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, or with reckless
indifference to human life and as a major participant, aided,
abetted … or assisted in the commission of the crime of murder.”
(CALJIC No. 8.80.1, italics added.) The italicized language
should not have been given because the drive-by murder special
circumstance requires a finding of specific intent to kill. (People
v. Chavez (2004) 118 Cal.App.4th 379, 385–386.)
4
which argued that the aiding and abetting instruction, CALJIC
No. 3.00, erroneously stated principals in a crime are “equally
guilty.”
In response to the petition, the People argued that
Hammond was not prosecuted under the felony murder or
natural and probable consequences theories or any other theory
under which malice could have been imputed to him. Instead,
Hammond was convicted under the still viable theory of direct
aiding and abetting. The People agreed that Hammond’s jury
had been incorrectly instructed on the drive-by special
circumstance. Nonetheless, the People argued that the jury’s
verdicts convicting Hammond of first degree murder and
attempted premeditated murder established that it necessarily
found he had an intent to kill. The People attached as exhibits
the opinion affirming Hammond’s judgment on direct appeal, jury
instructions, the verdicts, and the reporter’s transcript of the
closing argument. The instructions included CALJIC Nos. 8.20
[deliberate and premeditated murder], 8.25.1 [first degree drive-
by murder], 8.67 [attempted murder], and 3.00 & 3.01 [aiding
and abetting].4
On December 1, 2025, the trial court denied the petition.
This appeal followed. Hammond’s appellate counsel filed
an opening brief that raised no issues and asked this court to
independently review the record under People v. Delgadillo,
supra, 14 Cal.5th 216. Hammond filed a supplemental letter
brief in which he took responsibility for the crimes but denied
4 The prosecutor had initially proceeded on the theory that
Hammond and Morgan were both shooters. But when the jury
said it was deadlocked, the trial court instructed the jury on
aiding and abetting.
5
acting with reckless indifference to human life, admitted he gave
the gun to a fellow gang member but denied being in the car
during the shooting, and cited his exemplary record while
incarcerated.
DISCUSSION
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437) and subsequent related legislation limited accomplice
liability under the felony-murder rule, eliminated the natural
and probable consequences doctrine as it relates to murder, and
eliminated convictions for murder based on a theory under which
malice is imputed to a person based solely on that person’s
participation in a crime. (See generally People v. Reyes (2023) 14
Cal.5th 981, 986; Lewis, supra, 11 Cal.5th at pp. 957, 959; People
v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) Effective
January 1, 2022, Senate Bill No. 775 (2021–2022 Reg. Sess.)
expanded resentencing eligibility to persons convicted of
attempted murder under the natural and probable consequences
doctrine or manslaughter. (See generally People v. Gallegos
(2024) 105 Cal.App.5th 434, 441.)
Senate Bill 1437 added section 188, subdivision (a)(3),
which provides that “to be convicted of murder, a principal in a
crime shall act with malice aforethought” and malice “shall not
be imputed to a person based solely on his or her participation in
a crime.” Senate Bill 1437 also amended the felony-murder rule
by adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person (1) was the actual killer, (2) was
not the actual killer but, with the intent to kill, acted as a direct
aider and abettor, or (3) the person was a major participant in
the underlying felony and acted with reckless indifference to
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human life, as described in section 190.2, subdivision
(d). (Gentile, supra, 10 Cal.5th at p. 842.)
Senate Bill 1437 created a procedure, codified at section
1172.6, for a person convicted of murder under the former law to
be resentenced if the person could not be convicted of those
crimes under current law. (Lewis, supra, 11 Cal.5th at p. 959;
Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences
that procedure by filing a petition containing a declaration that,
among other things, the defendant could not be convicted of
murder under current law. (People v. Strong (2022) 13 Cal.5th
698, 708.)
At this prima facie stage, the trial court takes as true the
petitioner’s factual allegations and assesses whether the
petitioner would be entitled to relief if those allegations were
proved. (Lewis, supra, 11 Cal.5th at p. 971.) The trial court may
look at the record of conviction, including jury instructions,
verdicts, and closing argument, to determine readily
ascertainable facts such as the crime of conviction. (People v.
Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v.
Harden (2022) 81 Cal.App.5th 45, 56.) If at the prima facie stage
the record of conviction establishes that the petition is meritless,
the trial court may dismiss it. (Lewis, at p. 971.)
The record of conviction here establishes that Hammond
was ineligible for resentencing as a matter of law. Hammond’s
jury was not instructed on the natural and probable
consequences doctrine or felony murder. Instead, the trial court
instructed the jury on direct aiding and abetting with CALJIC
Nos. 3.00 and 3.01. Direct aiding and abetting remains a valid
theory of murder after the passage of Senate Bill 1437. (Gentile,
supra, 10 Cal.5th at p. 848.)
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With respect to the aiding and abetting instructions,
Hammond argued that the “equally guilty” language in CALJIC
No. 3.00 created an ambiguity regarding his required intent.
However, People v. Johnson (2016) 62 Cal.4th 600, 641, held that
where CALCRIM No. 401—CALJIC No. 3.01’s successor—is also
given, “there was no reasonable likelihood the jurors would have
understood the ‘equally guilty’ language in CALCRIM former
No. 400 to allow them to base defendant’s liability for first degree
murder on the mental state of the actual shooter, rather than on
defendant’s own mental state in aiding and abetting the killing.”
(Johnson, at p. 641.)
Nor does the error in the drive-by special circumstance
instruction establish a prima facie case for resentencing relief.
Section 190.2, subdivision (a)(21), provides for a special
circumstance, with a penalty of death or life without parole,
where “[t]he murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person or persons outside the vehicle with the intent to
inflict death.” (See generally People v. Richee (2025) 111
Cal.App.5th 281, 301.) Unlike other special circumstance
allegations, the drive-by special circumstance requires an intent
to kill. (Ibid.) Here, however, the drive-by murder special
circumstance instruction, CALJIC No. 8.80.1, improperly
contained language that the jury could find the drive-by special
circumstance allegation true if Hammond acted with reckless
indifference to human life and as a major participant.
Nonetheless, the jury necessarily found that Hammond
acted with express malice aforethought and intent to kill, because
it convicted him of first degree murder and of attempted
premeditated murder. (See, e.g., People v. Richee, supra, 111
8
Cal.App.5th at p. 303; see In re Lopez (2023) 14 Cal.5th 562, 579
[when an aider or abettor who acts with personal mens rea of
premeditation and deliberation, knowingly and intentionally
assists another to kill someone, aider and abettor is guilty of first
degree premeditated murder].)
Finally, the arguments Hammond raised in his
supplemental brief appear to concern alleged error at his trial,
including a challenge to the credibility of trial witnesses.
However, a section 1172.6 petition is not a vehicle to relitigate
alleged trial errors. (See, e.g., People v. Coley (2022) 77
Cal.App.5th 539, 549 [§ 1172.6 “is not a means by which a
defendant can relitigate issues already decided”]; People v.
Farfan (2021) 71 Cal.App.5th 942, 947 [“mere filing” of § 1172.6
petition doesn’t afford petitioner new opportunity to raise trial
error claims or attack sufficiency of evidence to support jury’s
findings]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438
[§ 1172.6 is not a direct appeal].) These issues therefore are not
properly before us.
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DISPOSITION
The order denying Richard Hammond’s Penal Code section
1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ASHWORTH, J.*
We concur:
ADAMS, Acting P. J.
HANASONO, J.
* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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