Filed 8/20/26 P. v. Amparo CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053160
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS042085B)
v.
MARCOS ANTONIO AMPARO,
Defendant and Appellant.
In 2005, after a jury trial, Marcos Antonio Amparo was convicted of two counts of
attempted murder, two counts of attempted murder of a police officer, two counts of
assault with a firearm, shooting at an occupied vehicle, and other crimes. He was
sentenced to an aggregate term of 75 years to life in prison. In 2024, Amparo petitioned
for resentencing under Penal Code section 1172.6, but the trial court denied the petition at
the prima facie stage because the jury at his trial was not instructed regarding the natural
and probable consequences doctrine or any other theory for which resentencing under
that section is available. (Subsequent undesignated statutory references are to the Penal
Code.)
Amparo now appeals. He argues that, despite the absence of any instruction
concerning the natural and probable consequences doctrine, the jury instructions and the
prosecutor’s closing argument allowed the jury “to effectively convict him of attempted
murder under the natural and probable consequences theory.” He also asserts that on
direct appeal this court affirmed his conviction for attempted murder based on such a
theory.
As explained below, we are not persuaded by these arguments and conclude that
the trial court correctly ruled that the record of conviction conclusively establishes that
Amparo is ineligible for resentencing under section 1172.6.
The order denying the petition for resentencing is affirmed.
I. BACKGROUND
A. The Underlying Offenses
Because the details of Amparo’s convictions are not material to this appeal, we
provide only a short description of the underlying offenses drawn from the opinion on the
direct appeal filed by Amparo and his codefendant Jose Monsivais, People v. Monsivais
et al. (Aug. 23, 2007, H029937) [nonpub. opn.] (Monsivais).)
In July 2004, Amparo and Monsivais engaged in a 10-day crime spree, ending in a
high-speed chase with police in which Monsivais repeatedly shot at officers chasing him.
The spree began with the theft of a car, which was followed by theft of a van and the
carjacking of another car. In the carjacking Monsivais and Amparo also robbed the
owner, and they robbed two clerks at a 7-Eleven and a clerk at a truck stop, again at gun
point.
The crime spree ended when California Highway Patrol officers observed the car
initially stolen by Monsivais and Amparo traveling about 90 miles per hour on the
highway. When the officers activated their lights and signaled for Amparo, who was
driving, to pull over, Amparo exited the highway, ran through a red light, and began
driving on a surface street at about 70 miles per hour. Amparo accelerated the car to
about 100 miles per hour, and Monsivais stood up through the sunroof and fired four or
five shots in the direction of the officers, before sitting down. Later, Monsivais stood up
again and fired another four or five shots. Eventually, the car reached a T-intersection,
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and Amparo tried to make a turn. However, he lost control and crashed into an
embankment.
B. The Initial Proceedings
After the crash, Monsivais and Amparo were arrested, and they were charged by
information with 20 offenses, including two counts of attempted murder (§§ 664,
subd. (a), 187, subd. (a); counts one and two), two counts of attempted murder of a public
officer (§§ 217.1, subd. (b); counts three and four), two counts of assault on a peace
officer with a firearm (§ 245, subd. (d)(1); counts five and six), and shooting at an
occupied vehicle (§ 246; count six). The information also alleged that these offenses
were committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).)
In 2005, a jury convicted Monsivais and Amparo of all the offenses charges and
found the gang allegations true. In 2006, Amparo was sentenced to 15 years to life for
one of the attempted murders as well as three additional terms of 15 years to life for the
attempted murders and the shooting charge, all three of which were either imposed
concurrently or stayed. On the remaining convictions, Amparo was sentenced to an
aggregate determinate term of 60 years in prison.
Amparo appealed his convictions. He argued that the evidence on the attempted
murder and shooting charges was insufficient, that he received ineffective assistance of
counsel, that a hearsay statement about gang membership was improperly admitted, and
that he was improperly sentenced. In August 2007, this Court issued an opinion rejecting
each of these arguments. (Monsivais, supra, H029937, at pp. 14-36.)
C. The Petition for Rehearing
In September 2024, Amparo filed a petition for resentencing using a standard,
printed form. Amparo checked boxes on the form for allegations that, among other
things, (1) the charges against him allowed the prosecution to use “felony murder, 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”;
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(2) he was convicted of murder, attempted murder, or manslaughter; and (3) he “could
not presently be convicted of murder or attempted murder because of changes made to
Penal Code §§ 188 and 189, effective January 1, 2019.”
The district attorney opposed, arguing that despite the allegations in the petition
the record of conviction established that Amparo is ineligible for resentencing under
section 1172.6. The district attorney argued that Amparo was convicted of first degree
premeditated attempted murder, which requires a specific intent to kill. In addition, the
district attorney argued that the jury was not instructed on the natural and probable
consequences doctrine and therefore could not, as a matter of law, have based its
convictions on that theory.
The trial court agreed with the district attorney’s second argument. It recognized
that Amparo had filed a facially valid petition. However, the court concluded that the
record of conviction—and, in particular, the jury instructions—conclusively rebutted the
petition’s allegations. That record, the court observed, showed that Amparo “was
convicted as a direct aider and abettor” and that “the jury was not instructed on the
doctrine of natural and probable consequences.” As a consequence, the trial court
concluded that Amparo was not entitled to resentencing as a matter of law.
II. DISCUSSION
On appeal, Amparo acknowledges that the trial court did not instruct the jury on
the natural and probable consequences doctrine. Nonetheless, he argues that the trial
court’s instructions defining principal as well as aiding and abetting allowed the jury
effectively to convict him of attempted murder on a natural and probable consequences
theory. Amparo also argues that in her closing argument the prosecutor urged the jury to
apply a natural and probable consequences theory and that this court affirmed his
conviction on direct appeal based on such a theory. We address these arguments, as well
as the trial court’s rationale for denying resentencing, below.
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A. Section 1172.6
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Sen. Bill 1437) “to more equitably sentence offenders in accordance with their
involvement in homicides” and, in particular, “to ensure that murder liability is not
imposed on a person who is not an actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subds. (b), (f); see People v. Gentile (2020) 10
Cal.5th 830, 846 (Gentile), superseded by statute on other grounds as stated in People v.
Oyler (2025) 17 Cal.5th 756, 836.) To accomplish these goals, Sen. Bill 1437
“eliminated natural and probable consequences liability for murder as it applies to aiding
and abetting, and limited the scope of the felony murder rule.” (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).)
Specifically, Sen. Bill 1437 amended section 189, the felony murder statute, to
impose murder liability on an individual involved in a qualifying felony only if the
individual was “the actual killer,” assisted the actual killer “with the intent to kill,” or was
a “major participant” in the underlying felony and acted “with reckless indifference.”
(§ 189, subd. (e)(1)-(3).) In addition, Sen. Bill 1437 effectively eliminated murder
liability based on the natural and probable consequences doctrine by amending
section 188 to provide that “a principal in a crime shall act with malice aforethought,”
and “[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 846.)
Sen. Bill 1437 also created a procedure, now in section 1172.6, to afford
retroactive relief to individuals convicted under murder theories the legislation rendered
invalid. (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong); see also Stats. 2022,
ch. 58, § 10 [moving resentencing provision to section 1172.6].) Under section 1172.6, a
person is eligible for resentencing if three requirements are satisfied: (1) The person was
charged with murder under any theory in which malice is imputed based solely on
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participation in a crime (including felony murder and the natural and probable
consequences doctrine) or attempted murder “under the natural and probable
consequences doctrine,” (2) the person was convicted of murder, attempted murder, or
manslaughter, and (3) the person “could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective January 1,
2019”—Sen. Bill 1437’s effective date. (§ 1172.6, subd. (a)(3); see Strong, at p. 708.)
Section 1172.6’s resentencing process “begins with the filing of a petition
containing a declaration that all requirements for eligibility are met.” (Strong, supra, 13
Cal.5th at p. 708; see § 1172.6, subd. (b)(1).) If the petition contains the required
information, resentencing moves to the next stage, where the trial court determines
whether the petitioner has made out a prima facie case for relief. (§ 1172.6, subd. (c).) If
the petitioner does, the trial court issues an order to show cause and holds an evidentiary
hearing in which the prosecution bears the burden of proving beyond a reasonable doubt
that the petitioner is guilty of murder or attempted murder under a still-valid theory.
(§ 1172.6, subd. (d)(3); see People v. Patton (2025) 17 Cal.5th 549, 559 (Patton).) If this
burden is not satisfied, the petitioner is entitled to resentencing as if he or she had not
been sentenced before, but the new sentence may not exceed the initial one. (§ 1172.6,
subds. (d)(1), (3).)
“[T]he prima facie inquiry” is “limited.” (Lewis, supra, 11 Cal.5th at p. 971.)
While the prima facie inquiry does not duplicate the initial facial review of the petition,
“the ‘prima facie bar was intentionally and correctly set very low.’ ” (Id at p. 972.) At
the prima facie stage, the objective is merely “to distinguish petitions with potential merit
from those that are clearly meritless.” (Id. at p. 971.) Accordingly, in conducting the
prima facie inquiry, “a trial court should not engage in ‘fact finding involving the
weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.) Instead, as a
general rule, the trial court “ ‘ “takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
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or her factual allegations were proved.” ’ ” (Id. at p. 971.) If the allegations in the
petition satisfy section 1172.6’s requirements, the prima facie case generally is satisfied.
(Ibid.)
This rule has an exception. “Conclusory allegations” are “subject to refutation by
the record of conviction.” (Patton, supra, 17 Cal.5th at p. 564.) In determining whether
a prima face case has been shown, trial courts may examine jury instructions, the verdict,
and other parts of the record of conviction to determine whether that record refutes the
petition’s allegations. (Lewis, supra, 11 Cal.5th at p. 972; but see Patton, at p. 568
[hearing transcripts may not be used to prove disputed facts].) If the record of conviction
“ ‘ “contain[s] facts refuting the allegations in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.” ’ ” (Lewis, at p. 971.)
However, the record of conviction must “establish conclusively” such facts. (Strong,
supra, 13 Cal.5th at p. 708; see also People v. Curiel (2023) 15 Cal.5th 433, 470 [at the
prima facie stage “the question is . . . whether the court’s jury instructions foreclose that
possibility as a matter of law”].)
Orders denying resentencing under section 1172.6 at the prima facie state are
reviewed de novo. (See, e.g., People v. Bodely (2023) 95 Cal.App.5th 1193, 1200.)
B. Analysis
Amparo’s petition alleged that he satisfied section 1172.6’s requirements for
resentencing. Nevertheless, the trial court ruled that Amparo failed to make a prima facie
showing of eligibility because the jury was not instructed on the doctrine of natural and
probable consequences, and the record of conviction therefore conclusively establishes
that Amparo was convicted of murder on a direct aiding and abetting theory, which
remains a “valid theory” after Sen. Bill 1437. (Curiel, supra, 15 Cal.5th at p. 462; see
Gentile, supra, 10 Cal.5th at p. 848.) Although Amparo concedes that the jury was not
instructed on the natural and probable consequences doctrine, he argues that the jury
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nonetheless might have convicted him under a natural and probable consequences theory.
As explained below, we are not persuaded.
1. The Natural and Probable Consequences Doctrine
The natural and probable consequences doctrine imposes criminal liability on
accomplices for offenses that were unintended but foreseeable. Under that doctrine, “an
accomplice is guilty not only of the offense that he or she directly aided and abetted (i.e.,
the target offense), but also of any other offense committed by the direct perpetrator that
was the ‘natural and probable consequence’ of the crime that the accomplice aided and
abetted (i.e., the nontarget offense).” (Gentile, supra, 10 Cal.5th at p. 843.) However, the
jury was not instructed that it could find Amparo guilty on this doctrine. Instead, the jury
was instructed that it could convict Amparo of aiding and abetting an offense if he
intended to encourage or facilitate that offense. (Curiel, supra, 15 Cal.5th at p. 462;
Gentile, at p. 848.) Consequently, as numerous decisions have recognized in such
circumstances, the record of conviction shows that Amparo was convicted on a still-valid
theory and therefore is ineligible for resentencing under section 1172.6.
In 2005, when Amparo was tried, the California Jury Instructions, Criminal—or
CALJIC—had a special instruction on the natural and probable consequences doctrine.
This instruction, CALJIC 3.02, provided: “One who aids and abets [another] in the
commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is
also guilty of any other crime committed by a principal which is a natural and probable
consequence of the crime originally aided and abetted.” (CALJIC 3.02 (JN. 2005 ed.),
p. 105.) The jury in this case was not given this instruction. Indeed, there is no mention
in the jury instructions of “natural and probable consequences,” target and nontarget
offenses, or even “other crime.”
Instead, the trial court instructed the jury using CALJC 3.01 and 3.02, the standard
instructions on principals and on aiding and abetting. According to these instructions,
which the court gave together, individuals who aid and abet a crime are considered
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principals in the crime, and to aid and abet a crime a person must assist in the crime with
both knowledge of the perpetrator’s unlawful purpose and intent to encourage or facilitate
the crime: “Persons who are involved in committing or attempting to commit a crime are
referred to as principals in that crime. Each principal, regardless of the extent or manner
of participation, is equally guilty. Principals include, one, those [who] directly and
actively commit the act constituting the crime or, two, those who aid and abet the
commission or attempted commission of the crime. A person aids or abets the
commission of a crime when he or she, one, with knowledge of the unlawful purpose of
the perpetrator and, two, with the intent or purpose of committing or encouraging or
facilitating the commission of a crime and, three, by act or advice aids, promotes,
encourages or instigates the commission of a crime. Mere presence at the scene of a
crime which does not itself assist the commission of the crime, does not amount to aiding
and abetting. Mere knowledge that the crime is being committed and the failure to
prevent it does not amount to adding and abetting.”
Numerous courts have recognized that where, as here, a defendant was convicted
of murder or attempted murder after the jury was instructed on a still-valid theory of
aiding and abetting, and not instructed on the natural probable consequences doctrine or
other now-invalid theory, the record of conviction shows that the defendant was
convicted on a still-valid theory and therefore is ineligible for resentencing under
section 1172.6. (See, e.g., People v. Allen (2023) 97 Cal.App.5th 389, 395 [“petitioner is
ineligible for section 1172.6 relief as a matter of law if . . . the jury instructions show that
the jurors were not instructed on any theory of liability affected by Senate Bill 1437’s
changes to sections 188 and 189”]; see also People v. Coley (2022) 77 Cal.App.5th 539,
548 [holding petitioner ineligible for resentencing where the jury was instructed on direct
aiding and abetting but not on the natural and probable consequences doctrine]; People v.
Cortes (2022) 75 Cal.App.5th 198, 200, 205-206 [holding petitioner ineligible for
resentencing because the trial court “did not instruct on felony murder or the natural and
9
probable consequences doctrine,” and no other instructions “required that malice be
imputed to him”]; People v. Estrada (2022) 77 Cal.App.5th 941, 946, 947 [holding
petitioner ineligible for resentencing where “only CALCRIM No. 401—regarding aiding
and abetting liability—was given to the jury,” and “the trial court never instructed the
jury on CALCRIM Nos. 402 or 403, which contain the natural and probable
consequences doctrine”]; People v. Daniel (2020) 57 Cal.App.5th 666, 677, fn. omitted
[holding petitioner ineligible for resentencing where “no instructions were given on
felony murder or murder under the natural and probable consequences doctrine”]; People
v. Soto (2020) 51 Cal.App.5th 1043, 1055 [“the jury instructions in this case demonstrate,
on their face and as a matter of law, that Soto was not and could not have been convicted
of second degree murder under the natural and probable consequences doctrine . . .
because the jurors were not provided any instruction on which they could have found
Soto guilty of murder under that doctrine”].)
2. CALJIC 3.00 and 3.01
Although Amparo admits that the jury was not instructed to apply the natural and
probable consequences doctrine, he asserts that two instructions given the jury—
CALJIC 3.00’s definition of principal and CALJIC 3.01’s definition of aiding and
abetting—permitted the jury to convict him of attempted murder under a natural and
probable consequences theory. As the Supreme Court has recognized, that is incorrect.
The Attorney General contends that we should not even consider this argument
because Amparo did not raise the argument in the trial court and therefore has forfeited it.
Amparo concedes that he did not argue in the trial court that the CALJIC 3.00 and 3.01
instructions permitted the jury to apply the natural and probable consequences doctrine,
which means that this argument could be treated as forfeited. (See, e.g., Sander v.
Superior Court (2018) 26 Cal.App.5th 651, 670 [“ ‘It is axiomatic that arguments not
raised in the trial court are forfeited on appeal.’ ”].) However, Amparo argues that denial
of his petition for resentencing violated due process and his trial counsel’s failure to raise
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the argument constituted ineffective assistance of counsel. Accordingly, we have
discretion to consider the merits of Amparo’s argument concerning the CALJIC 3.00 and
3.01 instructions. (See, e.g., People v. Amezcua and Flores (2019) 6 Cal.5th 886, 869
[“[S]ection 1259 allows us to reach the merits of any claim of instructional error that
potentially affects a party’s substantial rights.”]; People v. Crittenden (1994) 9 Cal.4th 83,
146 [reviewing courts have discretion to consider forfeited claims to forestall ineffective
assistance of counsel arguments], implicitly overruled on other grounds in People v.
Yeoman (2003) 31 Cal.4th 93, 114.) We choose to exercise that discretion.
In arguing that the CALJIC 3.00 and 3.01 instructions permitted the jury to convict
him on a natural and probable consequences theory, Amparo focuses on the instructions’
use of the word “crime.” He contends that the use of the word “crime” is problematic
because he was charged with many crimes and the instructions fail to identify any
specific crimes. While it is true that the instructions use the word “crime” without
specification, we do not see how this imprecision allowed the jury to apply a natural and
probable consequences theory. The natural and probable consequences doctrine allows a
jury to hold a defendant who commits one offense guilty of a second, different offense
that is a reasonably foreseeable consequence of the first offense: As noted above, “under
the natural and probable consequences doctrine, an accomplice is guilty not only of the
offense that he or she directly aided and abetted (i.e., the target offense), but also of any
other offense committed by the direct perpetrator that was the ‘natural and probable
consequence’ of the crime that the accomplice aided and abetted (i.e., the nontarget
offense).” (Gentile, supra, 10 Cal.5th at p. 843.) Nothing in either CALJIC 3.00 or
CALJIC 3.01 suggests that a jury may find a defendant guilty of one offense based on
commission of another, different offense.
To the contrary, both instructions refer to a single offense or crime. CALJIC 3.00,
which defines “principals,” discusses the persons involved in committing or attempting to
commit “a crime” and notes that they are principals in “that crime.” (Italics added.) The
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instruction also notes that principals include those who commit or attempt to commit “the
crime” as well as those who aid and abet the commission or attempted commission of
“the crime.” (Italics added.) There is no mention of a second offense, much less a
suggestion that commission of one offense may be used to hold a defendant guilty of a
second, different offense.
The CALJIC 3.01 instruction, which defines aiding and abetting, similarly refers
to a single offense or crime. It refers to a person who aids and abets the commission or
attempted commission of “a crime” with the intent of encouraging or facilitating the
commission of “a crime.” (Italics added.) The instruction also notes that mere presence
at the scene of “a crime” does not assist commission of “the crime,” and that mere
knowledge of “the crime” is being committed does not constitute aiding and abetting.
(Italics added.) Here again, there is no mention of a second offense, much less a
suggestion that a defendant committing one offense may be held guilty of a second,
different offense. Consequently, while the term “crime” used in the instructions at issue
may refer to any of the crimes with which Amparo was charged, use of that term did not
suggest that the jury could convict Amparo of a second, different crime based on a natural
and probable consequences theory.
Amparo also asserts that the word “crime” is ambiguous because it may refer to
crime in a formal, legal sense requiring both an actus reus and a mens rea, or in a more
informal, general sense of an unlawful act (without mens rea). While that may be true in
the abstract, the context in which the word “crime” is used in CALJIC 3.00 and 3.01
clearly indicates that the word “crime” is being used in a formal sense. Immediately after
this reference to “crime,” the jury instructions in this case referred to “commission of
crimes or crimes such as those charged in this case.” In addition, the trial court described
the “crimes” of “assault with a deadly weapon, shooting at an occupied vehicle,” and
other offenses with the which the defendants were charged. Thus, in CALJIC 3.00 and
3.01, the trial court used the word “crime” in the formal sense.
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We therefore conclude that use of the word “crime” in CALJIC 3.00 and 3.01 did
not suggest to the jury that it could convict Amparo of attempted murder based on
commission of another offense by his codefendant and, thus, did not effectively allow the
jury to convict him based on a natural and probable consequences theory.
Amparo also points to the statement in CALJIC 3.00 that “[e]ach principal,
regardless of the extent or manner of participation[,] is equally guilty.” Amparo asserts
that based on this statement “the jury could easily have concluded that Mr. Amparo was
‘equally guilty’ of attempted murder based only on his desire to facilitate the shooting but
not because he personally possessed express malice.” We disagree. Read in context, the
statement that principals—which include both perpetrators of “the act constituting the
crime” and individuals who “aid and abet . . . the crime”—are equally guilty of the crime
does not suggest that an individual who aids and abets a perpetrator in committing one
crime may be held criminally responsible for a second crime committed by the
perpetrator.
Indeed, the instructions given in this case preclude such responsibility. As noted
above, CALJIC 3.00 defines principal to include perpetrators as well as aiders and
abettors. However, CALJIC 3.01 states that a person aids and abets a crime when he or
she facilitates commission of the crime with knowledge of the perpetrator’s unlawful
purpose and with “the intent or purpose of committing or encouraging or facilitating the
commission of the crime.” There is no suggestion in this instruction that an individual
may be held responsible for the commission of a crime that he or she did not intend to
encourage or facilitate. Moreover, as noted above, the jury was not given CALJIC 3.02,
the instruction that does just that by telling the jury the aider and abettor of one crime is
guilty of other crimes that are the natural and probable consequence of the first crime. As
a consequence, under the instructions given in this case, the jury had no basis for holding
Amparo guilty of attempted murder because he aided and abetted Monsivais in shooting
at the police.
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Several Supreme Court decisions support this conclusion. In People v. Johnson
(2016) 62 Cal.4th 600 (Johnson), much as in this case, the trial court instructed the jury
that a person may be guilty of a crime as either a perpetrator or an aider and abettor, and
that “ ‘[a] person is equally guilty of the crime whether he committed it personally or
aided and abetted the perpetrator who committed it.’ ” (Id. at p. 638, quoting CALCRIM
No. 400 (Aug. 2009).) Like Amparo, the defendant in Johnson argued that this
instruction “permitted the jury to convict him of first degree murder based on the
culpability of the perpetrator . . . , without considering his own mental state.” (Ibid.) The
Supreme Court rejected this argument. Like the jury here, the jury in Johnson was
instructed that an aider and abettor must have a specific mental statue—including that he
or she “intended to aid and abet . . . in committing the killing”—and therefore the Court
concluded that this instruction “would have cleared up any ambiguity arguably presented
by CALCRIM former No. 400’s reference to principals being ‘equally guilty.’ ” (Id. at
p. 641.)
The Supreme Court reached the same conclusion in People v. Jasso (2025) 17
Cal.5th 646 (Jasso). In that case, much as in Johnson and here, the jury was instructed
that an individual may be guilty of a crime either as a perpetrator or as an aider and
abettor, and that “ ‘[a] person is equally guilty of the crime, whether her or she committed
it personally or aided and abetted the perpetrator who committed it.’ ” (Id. at p. 691.)
Additionally, unlike here, in Jasso the trial court instructed the jury 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.’ ” (Ibid.) Nevertheless, the Supreme Court rejected the suggestion that
this instruction permitted the jury to convict the defendant based on a natural and
probable consequences theory. Instead, relying on Johnson, the Court ruled that the
aiding-and-abetting instruction also given the jury “ ‘would have cleared up any
ambiguity arguably presented by CALCRIM former No. 400’s reference to principals
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being “equally guilty.” ’ ” (Id. at p. 692, citing Johnson, supra, 62 Cal.4th at p. 640; see
also ibid. [“The jury therefore could not have imputed malice to Jasso ‘based solely on
his . . . participation in the robbery.”].)
In supplemental briefing requested by the court, Amparo contends that Jasso and
Johnson are distinguishable because in both cases the Supreme Court recognized that the
instructions were ambiguous but resolved that ambiguity by examining matters beyond
the instruction such as the facts of the case, the arguments of counsel, and jury findings.
In fact, as noted above, the Supreme Court expressly stated in both cases that aiding-and-
abetting instructions “would have clear up any ambiguity arguably presented by
CALCRIM former No. 400’s references to principals being ‘equally guilty.’ ” (Johnson,
supra, 62 Cal.4th at p. 640; see also Jasso, supra, 17 Cal.5th at p. 692 [quoting
Johnson].) As Amparo notes, there are some factual differences between this case and
both Johnson and Jasso: A statement of the defendant in Johnson contradicted his
contentions (Johnson, at p. 640), and the jury’s special allegation findings in Jasso
contradicted the contentions of the defendant in that case (Jasso, at pp. 658-659).
However, these facts provided alternative grounds for the Court’s conclusion in addition
to its interpretation of the instructions and thus do not suggest any ambiguity in the
instructions.
It is true that the “ ‘equally guilty’ ” language used in CALJIC 3.00 has been
criticized and that the current version of the relevant standard instructions omits the term
“equally.” (See, e.g., People v. Burns 2023) 95 Cal.App.5th 862, 864-865 (Burns),
disapproved on other grounds by People v. Lopez (2026) 19 Cal.5th 639, 658; People v.
Nero (2010) 181 Cal.App.4th 504, 517-518 (Nero); People v. Samaniego (2009) 172
Cal.App.4th 1148, 1165 (Samaniego); see also Johnson, supra, 62 Cal.4th at pp. 639-640
[noting omission].) However, the defect identified in cases criticizing the term “equally
guilty” was not that the instruction allowed the jury to apply a natural and probable
consequences theory and hold aiders and abettors of one crime responsible for other
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crimes; the defect was that the instruction might lead a jury to think that codefendants in
a homicide case must have the same level of criminal responsibility regardless of their
mental state. (Burns, at pp. 864-865; Nero, supra, 181 Cal.App.4th at pp. 517-518;
Samaniego, supra, 172 Cal.App.4th at p. 1165.)
We therefore conclude that the CALJIC 3.00 and 3.01 instructions given the jury
did not permit it to convict Amparo of attempted murder based on a natural and probable
consequences theory.
3. The Closing Arguments
Amparo also asserts that in closing argument the prosecutor urged the jury to
convict him of attempted murder based on a natural and probable consequences theory.
~(AOB 18-19)~ Here again, we are not persuaded.
In closing argument, the prosecutor did not mention the natural and probable
consequences doctrine. She did not argue that Amparo could be held liable for attempted
murder because he aided and abetted another crime or that Monsivais’ attempt to murder
the officers was a foreseeable or natural and probable consequence of another crime.
Indeed, there is little discussion of intent in the prosecutor’s closing argument beyond a
reference to a “continuous wanton disregard for any kind of human life in his driving,”
“specific intent to prevent the officers from doing their duties,” and “wanton disregard on
the evading.” However, these assertions relate to the charges against Amparo for
attempting to murder a police officer and to elude a police officer in violation Vehicle
Code section 2800.2, and Amparo fails to explain how references to these requirements
suggested that the jury should apply a natural and probable consequences theory. Thus,
nothing in the closing arguments identified by Amparo indicates that the jury applied the
natural and probable consequences doctrine.
By contrast, there is a strong indication that the jury was not asked to apply the
doctrine. While the prosecutor did not refer to the natural and probable consequences
doctrine in her closing argument, in his closing argument Amparo’s counsel stated that
16
the prosecutor had to show an intent to kill in order to hold Amparo responsible for
attempted murder: Amparo’s counsel informed the jury that the prosecution’s theory was
that Amparo aided and abetted Monsivais’ attempt to kill and that “[t]o aid and abet[] an
offense like that, he’d have to have knowledge of the commission of the offense” and
also “have the intent to assist or encourage the commission of the act.” Moreover, in her
rebuttal argument, the prosecutor did not dispute that the jury had to find an intent to kill
in order to find Amparo guilty of attempted murder.
We therefore reject Amparo’s contention that the closing arguments suggested that
the jury could convict Amparo of attempted murder based on a natural and probable
consequences theory.
4. The Opinion on Direct Appeal
Amparo’s final argument is that on direct appeal this court held that the evidence
supporting his attempted murder conviction was sufficient based on a natural and
probable consequences theory. Amparo further argues that the court would not have
upheld his conviction based on that ground unless the theory was presented to the jury.
In addition, Amparo continues, it would be unfair to uphold his conviction based on the
theory and then deny resentencing on the ground that he was convicted under another
theory. We reject these arguments as well.
On direct appeal, Amparo challenged the sufficiency of the evidence supporting
his convictions for attempted murder, shooting an occupied vehicle, and assaulting a
peace officer with a weapon. (Monsivais, supra, H029937, p. 2 [listing convictions]; id.,
at p. 18 [affirming convictions on counts one to seven].) In particular, Amparo contended
that he was just a “ ‘passive observer’ ” who took no active role in aiding the offenses
and that there was no evidence that he “ ‘did any affirmative acts, apart from continuing
to drive, that intentionally aided, abetted, or encouraged Monsivais’ assaults on the
officers.’ ” After reviewing the substantial evidence standard and the requirements for
aiding and abetting (id. at pp. 15-17), the court analyzed the evidence. (Id. at pp. 17-18.)
17
It concluded that “Amparo’s continuing to flee police in a stolen car while the passenger
stood and fired a gun at the officers, sat down and reloaded, and stood and fired again,
demonstrates Amparo’s intent to encourage and bring about criminal conduct” and that
“Amparo’s companionship [with Monsivais] and conduct before and after the offense
[citation] and his continuing driving to flee from the officer during the shooting are
evidence of Amparo’s aiding and abetting Monsivais.” (Id. at p. 18.)
Nothing in this discussion suggests that the court applied the natural and probable
consequences doctrine. Earlier, the opinion does refer to the doctrine and to target and
non-target offenses. However, the opinion does not suggest that any offense was the
natural and probable consequence of another. Nor does the opinion suggest that
Amparo’s convictions for aiding and abetting attempted murder should be upheld based
on intent to facilitate a different offense. To the contrary, the opinion concluded that the
evidence demonstrated Amparo’s “intent to encourage and bring about criminal conduct,”
without suggesting that this intent extended only to some crimes and that Amparo was
responsible for other crimes based on a different theory—as it presumably would have
done had it applied the natural and probable consequences doctrine. We therefore
conclude that the trial court correctly found substantial evidence that Amparo intended all
the offenses for which he was convicted.
Amparo argues that this court must have relied on the natural and probable
consequences doctrine because the opinion on direct appeal mentioned the doctrine in
summarizing the law concerning aiding and abetting. It is true that the opinion
mentioned the doctrine. However, the opinion devoted little space to it: While the
opinion spent nearly two pages and six paragraphs discussing relevant legal principles
(Monsivais, supra, H029937, pp. 15-17), only two sentences concern the natural and
probable consequences doctrine (id. at p. 359). Even more important, as mentioned
above, in analyzing the evidence the opinion does not discuss target and non-target
offenses, natural and probable consequences, or any factors relating to the doctrine.
18
Moreover, Amparo fails to explain how this Court could have held the evidence sufficient
under the natural probable consequences doctrine without analyzing the evidence
supporting application of the doctrine.
We therefore reject Amparo’s contention that this court’s opinion on his direct
appeal found the evidence supporting his convictions sufficient based on the natural and
probable consequences doctrine.
III. CONCLUSION
The order denying appellant’s petition for resentencing is affirmed.
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____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
GREENWOOD, P. J.
____________________________________
DANNER, J.
People v. Amparo
H053160