Filed 7/22/26 P. v. Bocanegra CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052697
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 162886)
v.
PAUL DOMINIC BOCANEGRA,
Defendant and Appellant.
In this case, the trial court denied Paul Dominic Bocanegra’s petition for
resentencing under Penal Code section 1172.6 at the prima facie stage on the ground that
the record of conviction showed Bocanegra is ineligible for resentencing. (Subsequent
undesignated statutory references are to the Penal Code.) However, under section 1172.6
the prima facie inquiry is “ ‘limited.’ ” (People v. Patton (2025) 17 Cal.5th 549, 562
(Patton).) While a court may consider whether the record of conviction refutes eligibility
allegations at this stage (id. at pp. 562, 564), “a trial court should not engage in ‘fact
finding involving the weighing of evidence or the exercise of discretion’ ” (People v.
Lewis (2021) 11 Cal.5th 952, 972 (Lewis)). Indeed, at the prima facie stage, the strength
of the evidence in the record is not material. (Patton, at p. 567, fn. 10.) Instead, as the
Supreme Court admonished in People v. Curiel (2023) 15 Cal.5th 433 (Curiel), at the
prima facie stage the question in applying section 1172.6 is not whether it is likely that
the defendant was convicted of murder on a now-invalid grounds “but whether the court’s
jury instructions [or other aspect of the record of conviction] foreclose that possibility
that possibility as a matter of law.” (Id. at p. 470.)
As explained below, we conclude that the trial court exceeded the limited scope of
review permitted at the prima facie stage under section 1172.6 and engaged in fact
finding that should have been reserved for the evidentiary stage. Although the verdict
and jury instructions on the special circumstance found true by the jury showed that two
of the three requirements for direct aiding and abetting liability were satisfied, the record
of conviction did not show that the final requirement was satisfied and, thus, did not
establish direct aiding and abetting liability as a matter of law. In addition, while the
special circumstance finding suggests that the jury found Bocanegra guilty of murder
based on direct aiding and abetting, which remains a valid theory, it is possible that the
jury found Bocanegra guilty based on conspiracy and a natural and probable
consequences theory, which is now invalid. As a consequence, under the strict test that
the Supreme Court has interpreted section 1172.6 to impose, the record of conviction
does not conclusively refute Bocanegra’s allegations that he was convicted of a now-
invalid theory of murder, and the trial court should have proceeded beyond the prima
facie stage to an evidentiary hearing to determine whether in fact Bocanegra was
convicted based on a now-invalid theory.
Accordingly, we reverse the denial of Bocanegra’s petition for resentencing and
remand with instructions to issue an order to show cause and to conduct an evidentiary
hearing on the petition.
I. BACKGROUND
A. The Underlying Offenses
Because the details of the offenses underlying Bocanegra’s conviction for murder
are not material to this appeal, we provide only a short description of those offenses,
2
which is drawn from the opinion on the direct appeal. (See People v. Robledo (H013842,
July 3, 1997 [nonpub. opn.]).)
In July 1992, a gray Chevrolet passed Jesse Guerrero while he was pumping gas.
In the car were Bocanegra and two other gang members, including one who had pulled a
gun on Guerrero a week earlier. Afterwards, as Guerrero was driving a companion home,
he passed the gray car, and the occupants of the two cars “mad dogged” each other—that
is, they looked at each other in a way intended to provoke a fight. The gray car followed
Guerrero’s car, pulled up next to it, and both Bocanegra and his companion Bryan
Robledo again “mad dogged” Guerrero. Then, Robledo raised a handgun, pointed it at
Guerrero, and, from a distance of about two feet, fired eight shots.
Guerrero was hit several times, and a companion drove home and called the
police. After officers arrived, Guerrero was taken to a hospital, where he was pronounced
dead.
B. The Initial Proceedings
After Bocanegra, who was 17 years old at the time of the killing, was transferred
to criminal court, Bocanegra, Robledo, and the driver of the gray Chevrolet were charged
with Guerrero’s murder (§ 187; count 1). Robledo also was charged with possession of a
firearm by an ex-felon (§ 12021, subd. (a)), and all three defendants were charged with
committing murder for the benefit of a criminal street gang (§ 186.22, subd. (c)).
Additionally, in connection with the murder count, the information alleged three special
circumstances: intentionally killing while lying in wait (§ 190.2, subd. (a)(15)), use or
possession of a firearm (§§ 12022.5., subd, (a), 12022, subd. (a)(1)), and committing an
offense for the benefit of a criminal street gang (§ 186.22, subd. (b)).
In 1994, a jury convicted Bocanegra, Robledo, and the driver of first degree
murder. The jury also found the special circumstances allegations—including the lying-
in-wait circumstance—true. Finally, the jury convicted Robledo of possession of a
3
firearm by an ex-felon and Bocanegra of committing an offense for the benefit of a
criminal street gang.
In 1995, Bocanegra was sentenced to life in prison without possibility of parole.
However, in 2015, Bocanegra was resentenced under section 1170.126 to 29 years to life.
C. The Petition for Resentencing
In July 2023, Bocanegra filed a petition for resentencing under section 1170.95,
which by that time had been renumbered section 1172.6. (See Stats. 2022, ch. 58, § 10.)
The petition was on a printed form, and Bocanegra checked the 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”; (2) after a trial 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 resentencing. In addition to requesting judicial
notice of the jury instructions and verdicts at the trial, he argued that Bocanegra was
ineligible for resentencing under section 1172.6 because the jury’s verdict on the murder
count and finding on the lying-in-wait special circumstance “establish[] as a matter of
law that Petitioner either . . . killed the victim” or “aided and abetted the actual killer with
intent to kill,” both of which remain valid theories of murder.
After holding a hearing on whether Bocanegra had made a prima facie case for
relief, the trial court denied Bocanegra’s petition on the ground that “[t]he record of
conviction shows that Petitioner is ineligible for resentencing as a matter of law.” The
court recognized that the jury was instructed on conspiracy and the natural and probable
consequences doctrine. However, it reasoned, by finding true the lying-in-wait special
4
circumstance, “the jury necessarily determined beyond a reasonable doubt that the
Petitioner was the actual killer or acted with the intent to kill” and, thus, “acted with an
intent to kill.” The trial court also reasoned that, in reaching its verdicts, “[t]he jury must
have rejected culpability under the natural and probable consequence theory, or any other
lesser theories of culpability. . . .”
Bocanegra filed a timely notice of appeal.
II. DISCUSSION
Bocanegra argues that the allegations in his petition for resentencing made out a
prima facie case for relief under the section 1172.6 and that the trial court erred in ruling
that the record of conviction conclusively refuted those allegations. We review trial court
orders at the prima facie stage de novo. (See, e.g., People v. Bodely (2023) 95
Cal.App.5th 1193, 1200.)
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 “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 ground as stated in People v. Oyler (2025)
17 Cal.5th 756, 836; Lewis, supra, 11 Cal.5th at p. 957.) First, Sen. Bill 1437 restricted
the scope of the felony-murder rule. (See Gentile, supra, 10 Cal.5th at p. 842.) It
amended section 189 to impose murder liability on an individual involved in a qualifying
felony only if (1) the individual was “the actual killer,” (2) the individual aided, abetted,
or otherwise assisted the actual killer “with the intent to kill,” or (3) the individual was a
“major participant” in the underlying felony and acted “with reckless indifference.”
5
(§ 189, subd. (e).) Second, Sen. Bill 1437 effectively eliminated natural and probable
liability for murder. (Gentile, at p. 846; Lewis, at p. 957.) It amended 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).)
Sen. Bill 1437 also afforded retroactive relief to individuals convicted under the
murder theories the legislation rendered invalid. (People v. Strong (2022) 13 Cal.5th 698,
708 (Strong).) Specifically, under section 1172.6, a person is eligible for resentencing if
three requirements are satisfied: (1) The person was charged with murder under a theory
of a felony murder, the natural and probable consequences doctrine, or another theory in
which malice is imputed based solely on participation in a crime, (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”—the effective date of Sen. Bill 1437. (§ 1172.6,
subd. (a)(3); see Strong, at p. 708.) If a person is eligible for resentencing under
section 1172.6, the person is resentenced as if he or she had not previously been
sentenced before, and the new sentence may not exceed the initial one. (§ 1172.6,
subd. (d)(1).)
The resentencing process under section 1172.6 has four stages. First, a petitioner
files a declaration stating, among other things, that all requirements for eligibility are met,
and the trial court verifies whether on its face the petition is compliant. (§ 1172.6,
subd. (b)(1), (2); see People v. Antonelli (2025) 17 Cal.5th 719, 724.) Second, if the
petition is compliant, a hearing is held to determine whether the petitioner has made out a
prima facie case for relief. (§ 1172.6, subd. (c).) Third, if such a case is made, the trial
court issues an order to show cause and holds a hearing to determine whether in fact the
petitioner is entitled to relief, with the prosecution bearing the burden of proving beyond
6
a reasonable doubt that the petitioner is guilty of murder or attempted murder under the
law as amended by Sen. Bill 1437. (§ 1172.6, subd. (d)(3); see Patton, supra, 17 Cal.5th
at p. 559). If the prosecution does not satisfy its burden, the trial court vacates the
petitioner’s conviction and resentences the petitioner. (§ 1172.6, subd. (d)(3).)
As noted above, “the prima facie inquiry” conducted at the second stage of the
section 1172.6 process “is limited.” (Lewis, supra, 11 Cal.5th at p. 971.) While the
prima facie inquiry does not duplicate the first stage’s facial inquiry, “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 ‘factfinding 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 or her factual allegations were
proved.’ ” (Id. at p. 971.)
There is an exception to this general rule. “Conclusory allegations . . . are
particularly subject to refutation by the record of conviction.” (Patton, supra, 17 Cal.5th
at p. 564.) Accordingly, in determining whether a prima facie 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.) Moreover, as the Supreme Court stressed last year, “[a] conclusion that the
7
record refutes an allegation at the prima facie state is not . . . a conclusion about the
strength of evidence in the record.” (Patton, at p. 567, fn. 10, italics added.)
Consequently, as noted above, in determining whether jury instructions or some other
part of the record of conviction conclusively establishes a fact at the prima facie stage,
“the question is not whether it is likely a defendant could have acted in such a way, but
whether the jury instructions foreclose that possibility as a matter of law.” (Curiel,
supra, 15 Cal.4th at p. 470.)
B. Analysis
Although Bocanegra’s petition alleged that he satisfied all the requirements for
resentencing under section 1172.6 (see § 1172.6, subd. (a)(1)-(3).) the trial court ruled
that Bocanegra failed to make a prima facie case for relief based on the verdict and the
instruction on the lying-in-wait special circumstance. As explained below, in so doing,
the trial court exceeded the limited inquiry that the Supreme Court has allowed at the
prima facie stage. It was appropriate for the trial court to consider the record of
conviction, including the instructions and the verdicts, to determine if the record
conclusively refutes the petition’s allegations. However, under the Supreme Court’s
decisions, the record of conviction conclusively refutes such allegations only if it
forecloses, as a matter of law, eligibility for resentencing under section 1172.6. That is
not the case here.
1. The Lying-in-Wait Special Circumstance
The jury’s finding on the lying-in-wait special circumstance established several
requirements for direct aiding and abetting. However, it did not establish all the
requirements and therefore did not foreclose as a matter of law the possibility that
Bocanegra is eligible for resentencing.
We begin with the Supreme Court’s decision in People v. Curiel, supra, 15 Cal.5th
433. In addition to holding that at the prima facie stage the record of conviction must
8
foreclose as a matter of law the possibility of eligibility for resentencing (id. at p. 470),
Curiel applied that requirement to a case similar to this one. Much like Bocanegra, the
defendant in Curiel was charged with first degree murder, and a special circumstance—
albeit for a gang murder rather than for lying in wait—was alleged. (Id., at p. 440.) The
jury was instructed that another gang member perpetrated the murder, and the prosecutor
argued that defendant was guilty of first degree murder under a direct aiding and abetting
theory and under the natural and probable consequences doctrine. (Id. at p. 445.) The
jury convicted the defendant of first-degree murder and found true the gang-murder
special circumstance. (Id. at p. 440.) When the defendant later petitioned for
resentencing under what is now section 1172.6, the trial court denied the petition on the
ground that the jury’s special circumstance finding established an intent to kill and
therefore the defendant was convicted on a still-valid theory of murder. (Id. at p. 447.)
The Supreme Court disagreed. (Id. at p. 471.)
The Supreme Court recognized that the gang-murder special circumstance
instruction required the jury to find an intent to kill, the jury’s special circumstance
finding had preclusive effect, and therefore the finding should be considered in
determining whether the petitioner made a prima facie case under section 1172.6.
(Curiel, supra, 15 Cal.5th at pp. 450-460.) However, the Court also recognized that,
“after the enactment of Senate Bill 1437, a defendant cannot be convicted of murder
based on the doctrine of natural and probable consequences, even with a showing of
malice aforethought.” (Id. at p. 462.) Consequently, the Court continued, “a finding of
intent to kill . . . does not by itself establish any valid theory of liability.” (Id. at p. 463.)
Instead, an allegation that the petitioner cannot currently be convicted of murder on a
valid theory (and therefore is eligible for resentencing under section 1172.6) “is not
refuted by the record unless the record conclusively establishes every element of the
offense” under a still-valid theory. (Ibid.) “If only one element of the offense is
9
established by the record, the petitioner still could be correct that he or she could not be
currently convicted of the relevant offense based on the absence of other elements.”
(Ibid.)
The Supreme Court further held that the record of conviction in Curiel failed to
conclusively establish all the elements needed for direct aiding and abetting. Direct
aiding and abetting, the Court observed, requires a sufficient mens rea as well as a
sufficient actus reus (Curiel, supra, 15 Cal.5th at p. 441), and to satisfy the mens rea
requirement, “the aider and abettor must have ‘knowledge of the unlawful purpose of the
perpetrator’ and the ‘intent or purpose of committing, encouraging, or facilitating’ the
offense” (id. at p. 468). An intent to kill, “viewed in isolation,” does not establish the
required knowledge of the perpetrator’s purpose (id. at p. 441) and therefore “is
insufficient standing alone to render a person culpable for another’s acts” under a direct
aiding and abetting theory (id. at p. 468). Because the record of conviction in Curiel did
not establish the elements of direct aiding and abetting other than an intent to kill, the
Supreme Court concluded that the special circumstance finding in that case was
“insufficient to rebut Curiel’s allegation that he could not be convicted of murder under
current law” and conclusively establish ineligibility at the prima facie stage. (Id. at
p. 471.)
This case is indistinguishable. Here, as in Curiel, the petitioner alleged in his
petition for resentencing that he could not presently be convicted of murder because of
Sen. Bill 1437’s changes. In addition, as in Curiel, the jury found true a special
circumstance establishing that petitioner acted with an intent to kill. And, like the gang-
murder special circumstance found in Curiel, the lying-in-wait special circumstance
found in this case did not establish all the elements of direct aiding and abetting.
Consequently, like the special circumstance in Curiel, the special circumstance in this
10
case did not foreclose, as a matter of law, the possibility that Bocanegra is eligible for
resentencing.
As the Supreme Court recognized in Curiel, “to establish liability for murder
under the theory of direct aiding and abetting, ‘the prosecution must show that the
defendant [1] aided or encouraged the commission of the murder [2] with knowledge of
the unlawful purpose of the perpetrator and [3] with the intent or purpose of committing,
encouraging, or facilitating its commission.’ ” (Curiel, supra, 15 Cal.5th at p. 466.) The
trial court’s special circumstance finding established only two of these requirements. The
jury was instructed that, if the defendant was not the actual killer, to find the lying-in-wait
special circumstance allegation true, the defendant had to assist the killing with the intent
to kill: “If you find that the defendant was not the actual killer of a human being, you
cannot find the special circumstance to be true as to that defendant unless you are
satisfied beyond a reasonable doubt that such defendant, with intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested or assisted any actor in the
commission of the murder in the first degree.” Thus, in finding the lying-in-wait special
circumstance true, the jury found that Bocanegra “aided or encouraged the commission of
the murder,” which satisfies the first requirement for aiding and abetting, and that
Bocanegra acted with “intent to kill,” which satisfies the third requirement for aiding and
abetting. However, nothing in the instruction for the lying-in-wait special circumstance
required the jury to find “ ‘knowledge of the unlawful purpose of the perpetrator,’ ” the
second element of aiding and abetting. (Ibid.)
Thus, even though the lying-in-wait special circumstance found true in this case
establishes more of the elements of direct aiding and abetting than the gang-murder
special circumstance found in Curiel, the record of conviction in this case still fails to
establish every element of direct aiding and abetting liability. Consequently, just as in
Curiel, the special circumstance finding does not foreclose, as a matter of law, the
11
possibility that Bocanegra was convicted on a now-invalid theory and therefore does not
conclusively refute the petition’s allegations of eligibility for resentencing under
section 1172.6.
2. The Natural and Probable Consequences Doctrine
The trial court also asserted that the jury must have rejected any culpability under
the natural and probable consequences theory in finding Bocanegra guilty of first degree
murder and the special circumstance true. We disagree. While the lying-in-wait special
circumstance suggests that the trial court found Bocanegra guilty of first degree murder
on an aiding and abetting theory, it does not foreclose as a matter of law the possibility
that the jury found Bocanegra guilty of first degree murder based on a different theory
using the now-invalid natural and probable consequences doctrine.
In particular, the jury could have convicted Bocanegra of first degree murder
based on conspiracy and the natural and probable consequence doctrine. The trial court
instructed the jury that, if Bocanegra joined a criminal conspiracy, he was “not only
guilty of the particular crime that to his knowledge his confederates agreed to and did
commit, but . . . also for the natural and probable consequences of any crime of any co-
conspirator to further the object of the conspiracy . . . .” Indeed, the instruction
specifically noted that, if the jury found Bocanegra guilty of conspiracy, it had to
determine “whether the crime alleged in Count ONE, namely MURDER[,] was
perpetrated by a coconspirator in furtherance of such conspiracy and was [the] natural
and probable consequence of the agreed upon criminal objective of such conspiracy.”
(Italics added.) The jury also was instructed that the conspiracy in this case might have
been to “discharge a firearm at an occupied vehicle.” (Capitalization omitted.)
Consequently, under the conspiracy instruction given it, the jury could have found that
Bocanegra conspired with Robledo to discharge a firearm into an occupied vehicle and,
based on that crime, found him guilty of a murder that was a natural and probable
12
consequence of discharging the firearm. Moreover, if Robledo was guilty of first degree
murder, nothing in the jury instructions prevented the jury from finding Bocanegra guilty
of first degree murder as well.
In addition, if the jury found Bocanegra guilty of first degree murder based on
conspiracy and a natural and probable consequences theory, it could have found the
lying-in-wait special circumstance satisfied. The instruction given the jury required the
jury to consider the circumstance if it found the defendant guilty of first degree murder.
However, the instruction did not require that the defendant be found guilty of first degree
murder on any particular theory. As a consequence, it is possible that the jury found
Bocanegra guilty of murder based on conspiracy and a natural and probable
consequences theory, and it then found the lying-in-wait special circumstance true.
Whether this scenario is likely or not, it is sufficient for purposes of the prima facie stage
because, as noted above, at that stage “the question is not whether it is likely” a defendant
acted in certain way, but whether the “jury instructions foreclose that possibility as a
matter of law.” (Curiel, supra, 15 Cal.5th at p. 470, italics omitted.)
At oral argument, the Attorney General argued that the lying-in-wait special
circumstance instruction required the jury to find Bocanegra guilty on a direct aiding and
abetting theory. The Attorney General based this argument on the reference in the
instruction to whether defendant “aided” or “abetted” the murder at issue, which the
Attorney General contends implicitly required the jury to find the requirements for direct
aiding and abetting satisfied. However, the trial court merely instructed the jury that, if
the defendant was not the actual killer, the jury could find the special circumstance true
only if the defendant “aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted” in commission of the murder. The Supreme Court has rejected the
suggestion that such language instructs a jury to find the requirements of direct aiding
and abetting satisfied.
13
In In re Lopez (2023) 14 Cal.5th 562, the jury was instructed that, if the defendant
was not the actual killer, to find a gang-murder special circumstance true it had to find the
defendant “ ‘aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted' ” in the commission of the murder with the intent to kill. (Id. at p. 586.) Much
as here, in Lopez the Attorney General argued that this instruction required the jury to
find direct aiding and abetting. (Id. at p. 587.) The Supreme Corut rejected this
argument: “While the relevant language evokes similar concepts, it does not cover all of
the elements of direct aiding and abetting” because it “falls . . . short” of explaining the
requirements of direct aiding and abetting. (Id. at pp. 587, 588; see also People v. Morris
(2026) 19 Cal.5th 671, 692 [holding that, although section 189, subd. (e)(2) refers to
“aided” and “abetted,” it “does not require the same knowledge requirements as direct
aiding and abetting”].)
We therefore conclude that the verdict and jury instructions do not foreclose, as a
matter of law, the possibility that the jury found Bocanegra guilty of murder based on
conspiracy and a natural and probable consequences theory.
3. The Attorney General’s Alternative Ground
The Attorney General also defends the denial of Bocanegra’s petition for
resentencing on an alternative ground not considered by the trial court. (See, e.g.,
LaBarbera v. Security National Ins. Co (2022) 86 Cal.App.5th 1329, 1339, fn. 8 [“we
may affirm a ruling on a ground not adopted by the trial court”].) The Attorney General
argues that the requirements for the lying-in-wait special circumstance are more stringent
than those for lying-in-wait murder and therefore the jury’s special circumstance finding
conclusively establishes that Bocanegra was liable for murder by lying in wait. Here
again, the Attorney General’s argument fails because the lying-in-wait special
circumstances did not require the jury to find all the requirements for aiding and abetting
liability.
14
The lying-in-wait special circumstance subjects violators to death or imprisonment
for life without parole. (§ 190.2, subd. (a)(15).) As the Attorney General notes, when
Bocanegra was tried, the requirements were “slightly different from, and more stringent
than, the requirements for lying-in-wait murder.” (People v. Cage (2015) 62 Cal.4th 256,
278 (Cage).) While a defendant is guilty of first degree murder “perpetrated by means
of . . . lying in wait” (§ 189, subd. (a), italics added), the lying-in-wait special
circumstance in former section 190.2, subdivision (a)(15) required a murder “committed
while lying in wait” (Cage, at p. 278). In addition, while lying-in-wait murder
“ ‘require[d] only a wanton and reckless intent to inflict injury likely to cause death’ ”
(ibid.), then as now, the lying-in-wait special circumstance required that the defendant
“intentionally killed the victim” (§ 190.2, subd. (a)(15)). Accordingly, in People v.
Carpenter (1997) 15 Cal.4th 312 (Carpenter), the Supreme Court observed that “[i]f . . .
the evidence supports the special circumstance, it necessarily supports the theory of first
degree murder.” (Id. at p. 388, abrogated on other grounds as stated in People v. Diaz
(2015) 60 Cal.4th 1176, 1190-1191.)
However, Carpenter is distinguishable because in Carpenter the defendant was
not an accomplice charged with conspiracy or aiding and abetting a murder. Instead, he
was the perpetrator who committed the murders in question. (Carpenter, supra, 15
Cal.4th at p. 344.) Moreover, there is no mention of accomplice liability in Carpenter’s
discussion of lying-in-wait murder and the related special circumstance. (Id. at pp. 388-
391.) Consequently, when the Supreme Court stated in Carpenter that, if the evidence
supports the lying-in-wait special circumstance, it necessarily supports first degree
murder as well, the Court was referring to actual killers, not accomplices. Accordingly,
Carpenter provides no authority for assuming that finding a lying-in-wait special
circumstance for an accomplice necessarily shows murder liability for the accomplice.
15
(See, e.g., Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 348 [“A
decision . . . is not authority for what it does not consider.”].)
In fact, section 190.2 plainly does not establish accomplice liability in this case.
With respect to accomplices, the section provides: “Every person, not the actual killer,
who with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or
assists any actor in the commission of murder in the first degree shall be punished by
death or imprisonment in the state prison for life without the possibility of parole if one
or more of the special circumstances enumerated in subdivision (a) has been found to be
true under Section 190.4.” (§ 190.2, subd. (c); see also § 190.2, subd. (d) [relaxing the
mens rea requirement for certain crimes].) Like the instruction given the jury, while this
provision requires both an “intent to kill” and assistance in the killing, it does not require
the third element of direct aiding and abetting: “knowledge of the unlawful purpose of the
perpetrator.” (Curiel, supra, 15 Cal.5th at p. 468.) Thus, contrary to the Attorney
General’s suggestion, the jury’s finding of the lying-in-wait special circumstance plainly
does not establish, as a matter of law, liability for murder based on direct aiding and
abetting.
The Supreme Court’s decision in People v. Bonilla (2007) 41 Cal.4th 313 (Bonilla)
does not suggest otherwise. The Attorney General quotes a passage from Bonilla stating
that former section 190.2, subdivision (b) provided that every person “ ‘found guilty of
intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting
or assisting any actor in the commission of murder in the first degree’ ” shall be punished
by death or life in prison without the possibility of parole for murders involving, among
other things, lying-in-wait. (Bonilla, supra, 41 Cal.4th at p. 331.) The quoted language
suggests that, by requiring that the individual be found guilty of intentionally aiding a
murder, former section 190.2’s lying-in-wait special circumstance applied only to
accomplices already found guilty of murder based on direct aiding and abetting.
16
However, Proposition 115 replaced this language in 1990 (Ballot Pamp., Primary Elec.
(June 5, 1990) text of Prop. 115, § 10, p. 66), years before the murder of Jesse Guerrero.
The current language does not refer to individuals “found guilty” of intentionally
assisting in the commission of a murder; it refers to persons, “not the actual killer, who,
with the intent to kill, . . . aid[]” or assist in the commission of a murder involving a
special circumstance. (§ 190.2, subd. (c).)
We conclude that the jury’s special circumstance finding does not establish as a
matter of law that Bocanegra is liable for murder under a still-valid theory of murder, and
therefore the record of conviction does not conclusively refute the allegations in
Bocanegra’s petition for resentencing that he is eligible for resentencing under
section 1172.6, which means he made the necessary prima facie showing for relief. As a
consequence, the trial court should not have decided whether Bocanegra was convicted
under a direct aiding and abetting theory until conducting an evidentiary hearing at the
third stage of the section 1172.6 process.
III. DISPOSITION
The order denying appellant’s petition for resentencing under section 1172.6 is
reversed, and this matter is remanded to the trial court with instructions to issue an order
to show cause under section 1172.6, subdivision (c) and to hold an evidentiary hearing
under section 1172.6, subdivision (d).
17
____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
DANNER, ACTING P. J.
____________________________________
CHUNG, J.
People v. Bocanegra
H052697
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.