Redesignation, Not Dismissal, Is Remedy for Defunct Charge

Tuesday, May 26, 2026

Page 1

Court of Appeal:

Redesignation, Not Dismissal, Is Remedy for Defunct Charge

Opinion Says Judge Wrongly Kicked Case at Resentencing Based on Felony-Murder Changes, Judicial Remark That There Was ‘No Underlying Felony’ Does Not Mean Only Available Theory Was Intentional Killing

By Kimber Cooley, associate editor

Div. Two of the Fourth District Court of Appeal has held that a trial judge erred in dismissing the case against a suspect who was found to have been convicted under a now-defunct felony-murder theory of liability after discovering that no other charges were filed against him, saying the proper remedy was the redesignation of the conviction to the “target crime” even if no other offense was charged.

However, the court rejected the assertion that the judge’s comment that she did not believe that there was an underlying felony in the case, and the defendant’s guilty plea to voluntary manslaughter, precluded the finding that prosecutors could have proceeded under the now invalidated theory.

Justice Michael J. Raphael authored Thursday’s opinion, joined in by Acting Presiding Justice Art W. McKinister and Justice Corey G. Lee, declaring:

“[W]here an accomplice pleads to voluntary manslaughter, that…does not alone establish he is guilty of murder under a still-viable theory….For one thing, a defendant could be admitting he is guilty of manslaughter under a natural and probable consequences theory, rather than a theory that requires intent to kill….For another, the person could be admitting he is guilty of manslaughter without the malice required for first-degree murder.”

Raphael added that “[t]he People place too much weight on the trial court’s comment” that there was no target offense in the case, saying the remark did not render the defendant “statutorily ineligible” for relief by showing that there was no abrogated felony-murder theory at play when the guilty plea was entered.

Murder Charges

Seeking resentencing relief was Leroy Tyus Jr., who was charged with murder after his companion, Kevin Roach, fatally shot Dustin Diaz in 2006, from whom the pair planned to try to collect money. Tyus, who was 15 years old at the time of the shooting, pled guilty to voluntary manslaughter in 2010 after agreeing to testify against Roach; he was sentenced to 21 years in prison, to run concurrently with another case.

In 2018, the Legislature passed Senate Bill 1437, which amended Penal Code §189 to curtail theories of murder liability based on imputed malice such as felony murder. That section now provides that “a participant in the perpetration…of [certain enumerated felonies]…is liable for murder only if” he was the actual killer, aided with the intent to kill, or was a “major participant in the underlying felony” who “acted with reckless indifference” to life.”

Defendants convicted under a now-defunct theory are authorized to seek relief through a procedure outlined in §1172.6, which specifies that such a party “may file a petition…to have [his] murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts.” Subd. (e) provides:

“The petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged.” Tyus filed a petition for resentencing in 2023, asserting:

“I pled guilty…in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or natural and probable consequences doctrine.”

Prosecutors did not dispute that he had made a prima facie case, and an evidentiary hearing was set. Transcripts of his plea and preliminary hearing were admitted, which revealed Tyus’ testimony that he did not know Roach was going to shoot Diaz even though he acknowledged that he knew the shooter had obtained a gun during an earlier burglary.

San Bernardino Superior Court Judge Zahara Arredondo granted the petition in January of last year, saying that she found Tyus “not guilty” and vacating his conviction.

Adding that “Mr. Tyus shall be resentenced on any remaining charges, to which I believe there are none,” Arredondo rejected the prosecutor’s argument that the case was charged under a “straight aider and abettor” theory. She declared:

“I do not believe that Mr. Tyus…should have pled in the first place. But…the law was different back then. The changes in the law, this case would not even have been filed against Mr. Tyus.”

Choice of Theories

Raphael wrote:

“Tyus’s petition presents a choice between two theories of murder liability for his actions with Roach….[T]he People argue that he was guilty of directly aiding and abetting a murder. This theory requires the prosecution to prove that Tyus had the intent to kill….In contrast, Tyus’s petition claims he pled guilty to manslaughter because he feared conviction on a felony-murder theory for participating in a lesser crime where a death occurred. Here, the facts suggest a crime of attempted robbery because Tyus testified he believed the duo was collecting a debt.”

Saying that “the evidence supports the trial court’s conclusion that the People failed to prove direct aiding and abetting a murder beyond a reasonable doubt,” he commented that “the People lacked sufficient proof that Tyus intended to kill, rather than merely participate in what he understood to be a debt collection.” However, he added:

“Because the People failed to prove that Tyus was guilty of murder under current law, the trial court had to provide relief. It followed a directive from section 1172.6, subdivision (d)(3), that mandates the petitioner be resentenced on the remaining charges. Because there were none, the trial court dismissed the case. In doing so, it overlooked an additional requirement in subdivision (e) that states that if there are no remaining charges, the conviction must be redesignated as the underlying felony or target crime.”

The jurist continued:

“To establish a prima facie case on his petition, Tyus did not need to assert that he is guilty of attempted robbery based on the evidence admitted at his evidentiary hearing. He needed to assert that he…believed, when he pled guilty…, that he could face felony-murder liability if he offered his defense. Once the People failed to establish Tyus guilty of murder at the evidentiary hearing, on the record here, Tyus’s manslaughter conviction should have been redesignated as attempted robbery under section 1172.6, subdivision (e).”

Judicial Comments

Turning to the judge’s comment, he remarked:

“The People argue that the trial court’s statement that there was no underlying crime means that section 1172.6 relief was improperly granted; absent an underlying crime, the only possible theory of murder would be that Tyus directly aided the shooter with intent to kill, a theory unchanged since Tyus’s conviction.”

Saying that “[t]he People’s argument has some appeal because Tyus never asserted precisely what underlying felony served as his ‘predicate for relief in the first place,’ ” he rejected the argument, pointing out that the prosecutors bore the burden of proving that the defendant could be found guilty of murder under current law the evidentiary hearing. He wrote:

“[T]he People essentially argue that they had no burden to prove Tyus’s guilt because the record ‘foreclosed the conclusion’ that there was a now-abrogated murder theory motivating his guilty plea….That is an argument about the prima facie case….After losing at the evidentiary hearing, they attempted to prevail not by showing they met their evidentiary burden, but by arguing the hearing should not have occurred. This is not a basis for reversal.”

Raphael added:

“The People call direct aiding and abetting a ‘viable theory under which Tyus could now be prosecuted,’ but they do not use the facts to explain how they proved the necessary intent beyond a reasonable doubt. Indeed, both in their opening brief and their trial court position paper, the People stated, ‘Tyus believed this was a debt collection.’ That the People characterize Tyus’s belief this way undermines their argument that they proved Tyus’s intent to kill beyond a reasonable doubt.”

The case is People v. Tyus, 2026 S.O.S. 1412.