People v. Rushing
B334988
Cal. Ct. App.Mar 20, 2025Background
- Cory T. Rushing and Nakia Hubbard, both gang members, beat Gregory Powe on October 5, 2007, during a gang celebration. Powe later died from injuries caused by the attack.
- Rushing was convicted by a jury in 2009 of second degree murder with a gang enhancement; Hubbard was convicted of first degree murder.
- In 2022, Rushing petitioned for resentencing under California Penal Code section 1172.6, following changes to the law limiting murder liability for aiders and abettors (SB 1437).
- The trial court summarily denied Rushing’s petition, finding he was ineligible for resentencing.
- Rushing appealed the denial, arguing his conviction may have rested on theories invalidated by SB 1437, specifically the natural and probable consequences doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction validity under SB 1437 | No instruction on natural/probable consequences; so jury did not convict under invalid theory | Bracketed language in CALCRIM No. 400 may have allowed conviction under invalid doctrine | No CALCRIM 402/403 given; bracketed language alone insufficient; conviction stands |
| Prosecutor’s closing argument implication | Prosecutor applied law only on direct aiding/abetting, not natural/probable consequences | Prosecutor’s argument could have confused jury to apply invalid doctrine | Argument did not change jury instructions or permit conviction under invalid theory |
| Prima facie case for relief under section 1172.6 | Record of conviction shows defendant is ineligible for relief | Petitioner made sufficient showing of possible reliance on invalid theory | Record conclusively establishes ineligibility |
| Applicability of prior authority (Estrada precedent) | Analogous; bracketed language alone not sufficient | Case distinguishable due to conviction of second degree murder | Estrada applies; bracketed language cannot support claim for relief |
Key Cases Cited
- People v. Curiel, 15 Cal.5th 433 (Cal. 2023) (confirmed that SB 1437 eliminated murder liability under natural and probable consequences doctrine)
- People v. Lewis, 11 Cal.5th 952 (Cal. 2021) (described prima facie processes for resentencing petitions under SB 1437)
- People v. Estrada, 77 Cal.App.5th 941 (Cal. Ct. App. 2022) (held bracketed language in CALCRIM No. 400 does not instruct on natural and probable consequences doctrine without CALCRIM 402/403)
- People v. Rogers, 39 Cal.4th 826 (Cal. 2006) (clarified malice requirements for murder convictions)
- People v. Knoller, 41 Cal.4th 139 (Cal. 2007) (defined implied malice for murder)