Filed 10/22/26 P. v. Burciaga CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089979
Plaintiff and Respondent,
(Super. Ct. No. BF135473A)
v.
JOSEPH DURAN BURCIAGA,
OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kern County. John D. Oglesby,
Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, David A. Lowe and
William C. Moine, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2013, a jury convicted Joseph Duran Burciaga (appellant) of first degree murder
(Pen. Code, §§ 187, subd. (a), 189, subd. (a))1 and arson of an inhabited structure (§ 451,
subd. (b)) but found not true the allegation that he personally and intentionally discharged
a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). On direct appeal,
we reduced appellant’s murder conviction to second degree, concluding there was
insufficient evidence to sustain the jury’s finding of premeditation and deliberation, but
otherwise affirmed. (People v. Burciaga (Nov. 2, 2015, F067420) [nonpub. opn.].)
In 2024, appellant filed a petition for resentencing pursuant to section 1172.6. The
trial court denied the petition for failure to make a prima facie showing. This appeal is
taken from that denial. We conclude denial was proper because the record of conviction
demonstrates the jury necessarily found appellant guilty based on a theory of murder that
remains valid under current law. We affirm.
FACTUAL BACKGROUND2
“On October 15, 2010, Frank [A.’s] wife, [B.H.], dropped him off at the house
where [appellant] lived. [Frank] intended to briefly speak to [appellant] regarding the
whereabouts of a mutual friend. [B.H.] parked in front of the house and [Frank] walked
up and knocked on the door. [B.H.] saw someone answer the door, and watched as
[Frank] walked into the house. [Frank] was never seen alive again. [B.H.] eventually
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 This factual summary is taken from our prior opinion, People v. Burciaga, supra,
F067420. We include it solely to provide context for the issues presented and do not rely
on it in determining whether appellant established a prima facie case for relief. (See
People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238 [factual summary from
appellate opinion may not be considered to determine § 1172.6 resentencing eligibility];
People v. Lee (2023) 95 Cal.App.5th 1164, 1170 [factual summary from appellate
opinion provided only as context for the issues presented].) We also note that, during the
pendency of this appeal, we granted respondent’s request for judicial notice of the prior
opinion and corresponding appellate record.
2.
called the police, who responded to the house and spoke to [appellant]. [Appellant]
claimed [Frank] asked him to party, [appellant] declined, and [Frank] and another man
jumped over the backyard fence and left in a third man’s car. The police briefly searched
the house and did not see anything suspicious. During the search, an officer noticed a
large plastic pool supply box in the backyard but did not open it. The officers believed
[appellant’s] account, advised [B.H.] that he would eventually show up and left the scene,
much to her shock and frustration. She immediately filed a missing person report.
“A few days after [Frank A.] disappeared, [appellant’s] house burned down as a
result of a suspicious fire. The investigators realized that this was the same house
implicated in the missing person report, and again questioned [appellant] about [Frank].
A week after the fire, [Frank’s] decomposed body was found in an irrigation ‘sump.’ The
body had been stuffed inside the large plastic pool supply box. [Frank] had been fatally
shot in the chest. [Appellant] fled to Mexico, but eventually returned and was arrested
for [Frank’s] murder. While he was in custody, he made several admissions to a fellow
inmate that he shot [Frank] and had someone else dump the body.” (People v. Burciaga,
supra, F067420.)
PROCEDURAL BACKGROUND
I. 2013 Trial, Conviction, and Direct Appeal.
The Kern County District Attorney’s Office filed an information charging
appellant with murder (§ 187, subd. (a)) and arson of an inhabited structure (§ 451,
subd. (b)). As to the murder charge, the information further alleged that appellant
personally and intentionally discharged a firearm causing great bodily injury or death.
(§ 12022.53, subd. (d).)
In 2013, a jury found appellant guilty of first degree murder and arson of an
inhabited structure but found the firearm enhancement allegation not true. The trial court
sentenced appellant to 25 years to life for the murder, plus an additional eight years for
the arson.
3.
On direct appeal, appellant challenged the sufficiency of the evidence to sustain
his first degree murder conviction, contending the evidence did not establish
premeditation and deliberation. (People v. Burciaga, supra, F067420.) Applying
substantial evidence review, we agreed that there was “insufficient evidence of
premeditation and deliberation to support [appellant’s] conviction for first degree
murder.” (Ibid.) We reduced the conviction to second degree murder under section 1260
but otherwise affirmed the judgment. (Burciaga, supra, F067420.) We also rejected
appellant’s contention that the jury’s not true finding on the use of a firearm enhancement
undermined the murder verdict, concluding that any purported inconsistency between the
findings did not affect the validity of the murder conviction. (Ibid.) On remand,
appellant was resentenced to 15 years to life for the second degree murder conviction.
II. Section 1172.6 Petition Proceedings.
In August 2024, appellant filed a petition for resentencing under section 1172.6.
Using a form petition, he checked boxes generally alleging he could no longer be
convicted of murder “because of changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” The trial court appointed counsel to represent him.
The People filed an opposition, contending the evidence introduced at trial
conclusively established appellant was the actual killer and that the jury could not have
convicted him under a theory involving imputed malice. In a reply brief, now with the
assistance of counsel, appellant argued he had made a prima facie showing based on the
allegations in the petition, the jury’s not true finding on the firearm enhancement, the
reduction of his murder conviction to second degree murder on direct appeal for
insufficient evidence of premeditation and deliberation, and the instructions given at trial.
At a hearing in December 2024, the trial court found, without stating a basis for its
ruling, that appellant had made a prima facie showing of entitlement to relief. It ordered
that the evidentiary hearing be conducted by a different judge, who subsequently set a
briefing schedule.
4.
Before the evidentiary hearing, the People filed a “Motion for Reconsideration of
Prima Facie Finding,” based on People v. Patton (2025) 17 Cal.5th 549 (Patton). The
People argued that reconsideration was warranted because Patton, decided after the trial
court’s prima facie determination, clarified that a court may consider the record of
conviction to determine whether it conclusively refutes allegations of eligibility in a form
petition. (See Patton, at p. 569.) Applying Patton, the People contended the court should
reconsider its prior ruling and find that appellant failed to make a prima facie showing.
The People asserted the record contained “no facts … that remotely suggest[ed] the
People ever alleged or intended to allege anything except that the [appellant] was the sole
and actual killer,” and thus “directly contradict[ed] his mere conclusory allegation” of
eligibility in the form petition.
In opposition to the motion for reconsideration, appellant reiterated the grounds he
had previously asserted in support of a prima facie showing. He emphasized that the jury
was instructed on aiding and abetting principles, the possible involvement of another
perpetrator, and alibi. He also relied on the jury’s not true finding on the firearm
enhancement and our reduction of his first degree murder conviction to second degree
murder.
On June 5, 2025, the trial court granted the People’s motion for reconsideration
and denied the petition for failure to make a prima facie showing. In a written order, the
court explained that it “considers it appropriate that it review the preliminary hearing
record to determine if [appellant] has met his burden of a prima facie showing in light of
the evidence produced at the preliminary hearing, i.e., was the prosecution’s theory of the
case based upon a now impermissible theory of liability.” The court summarized the
preliminary hearing evidence in detail and agreed with the prosecutor’s argument at the
close of that hearing that the evidence showed appellant acted alone in killing the victim.
The court concluded: “Both the record on appeal as well as the trial transcript of
argument of counsel make it clear that both the People’s theory of the case as to the
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murder charge both at the preliminary hearing and the trial was that [appellant] alone
killed [the victim]. There was no evidence that suggested or was argued that
[appellant’s] culpability was based upon imputed malice.” The court also rejected
appellant’s reliance on the aiding and abetting instructions, concluding that those
instructions were applicable only to the arson charge.
DISCUSSION
I. Appellant’s Section 1172.6 Petition Was Properly Denied at the Prima Facie
Stage Because the Record of Conviction Conclusively Refuted His Allegation
That He Could Not Be Convicted of Murder Under Current Law.
Appellant contends the trial court erred by relying on the preliminary hearing
transcript in determining that he failed to make a prima facie showing. He claims that
Patton, which held that a court may consider “a preliminary hearing transcript preceding
a guilty plea” at the prima facie stage, is inapplicable because he was convicted following
a jury trial. (Patton, supra, 17 Cal.5th at p. 568.) He argues the court engaged in
impermissible factfinding by relying on the preliminary hearing evidence to determine
that he acted alone in killing the victim. He also asserts that the record of conviction,
including the jury instructions given, permitted the jury to convict him of murder under a
theory of imputed malice.
We need not determine whether the trial court properly considered the preliminary
hearing transcript because the issue is not dispositive. We independently review a trial
court’s determination that a petitioner failed to make a prima facie showing under
section 1172.6, and in doing so “we review whether the challenged ruling is correct, not
the analysis the court used to reach it.” (People v. Warner (2025) 115 Cal.App.5th 416,
426; see People v. Cortes (2022) 75 Cal.App.5th 198, 204.) Thus, even assuming the
trial court improperly relied on the preliminary hearing transcript, we may affirm if the
remaining record of conviction conclusively establishes appellant’s ineligibility for relief.
6.
Here, independent of the preliminary hearing transcript, the record of conviction
conclusively refutes appellant’s allegation of eligibility. The jury’s verdicts, viewed in
light of the instructions given, establish that the jury necessarily found appellant either
personally committed the murder or directly aided and abetted its commission. Because
both theories remain valid under current law, the record conclusively refutes appellant’s
allegation that he could not presently be convicted of murder.
A. Relevant jury instructions.
At appellant’s trial, the trial court instructed the jury with the following homicide
instructions: CALCRIM No. 500 (Homicide: General Principles), CALCRIM No. 520
(First or Second Degree Murder with Malice Aforethought), and CALCRIM No. 521
(First Degree Murder). CALCRIM No. 500 instructed the jury to determine whether the
killing was unlawful and, if so, “what specific crime was committed.” CALCRIM
No. 520 instructed that murder requires “an act that caused the death of another person,”
and “a state of mind called malice aforethought.” The instruction defined express and
implied malice and further directed the jury, if it found appellant guilty of murder, to
determine whether the murder was of the first or second degree.
CALCRIM No. 521 supplied the sole theory of first degree murder: willful,
deliberate, and premeditated murder. It instructed that appellant acted willfully if he
“intended to kill,” deliberately if he “carefully weighed the considerations for and against
his choice and, knowing the consequences, decided to kill,” and with premeditation if he
“decided to kill before completing the acts that caused death.”
The jury was instructed on aiding and abetting liability with CALCRIM No. 400
(Aiding and Abetting: General Principles) and CALCRIM No. 401 (Aiding and Abetting:
Intended Crimes). CALCRIM No. 400 instructed that a person may be guilty of a crime
as a “perpetrator” or by aiding and abetting the perpetrator. CALCRIM No. 401
instructed that direct aiding and abetting required proof that the perpetrator committed a
crime; appellant knew the perpetrator intended to commit the crime; appellant “intended
7.
to aid and abet the perpetrator in committing the crime;” and appellant’s “words or
conduct did in fact aid and abet the perpetrator’s commission of the crime.” It further
explained that an aider and abettor must know of the perpetrator’s unlawful purpose and
“specifically intend[] to, and … in fact, aid, facilitate, promote, encourage, or instigate”
the commission of the crime. Nothing in the aiding and abetting instructions limited their
application to a specific crime.3
B. Applicable law and standard of review.
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) “altered
the substantive law of murder in two areas.” (People v. Curiel (2023) 15 Cal.5th 433,
448 (Curiel).)
First, Senate Bill No. 1437 eliminated natural and probable consequences liability
for murder. (Curiel, supra, 15 Cal.5th at p. 449; People v. Gentile (2020) 10 Cal.5th 830,
846–847.) Before its enactment, “a person could be held liable not only for the crime
they intend to commit with their confederate (the target crime), but also for any other
offense (nontarget crime)—including murder—‘committed by the confederate as a
“natural and probable consequence” of the crime originally aided and abetted.’ ” (People
v. Lopez (2023) 88 Cal.App.5th 566, 574–575, disapproved of on another ground by
People v. Morris (2026) 19 Cal.5th 671, 693, fn. 9.) Senate Bill No. 1437 amended
section 188 to provide that, except in cases of felony murder, “a principal in a crime shall
act with malice aforethought” to be convicted of murder, and that “[m]alice shall not be
imputed to a person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3); see Curiel, at p. 449; Gentile, at pp. 846–847.)
3 As detailed above, the trial court concluded that the aiding and abetting
instructions only applied to the arson charge, presumably based on the prosecutor’s
closing argument and the parties’ agreement during the jury instruction conference that
the prosecution was only proceeding on an aiding and abetting theory as to the arson
charge. However, as appellant correctly observes, the language of CALCRIM Nos. 400
and 401 contained no such limitation.
8.
Second, Senate Bill No. 1437 “significantly narrowed the scope of the felony-
murder rule.” (People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).) Prior to its
enactment, a defendant could be liable for first degree murder for a killing committed by
the defendant or an accomplice during the commission of a qualifying felony. (Former
§ 189; see Strong, at p. 703.) Under the amended law, “participation in a qualifying
felony in which a death occurs is no longer sufficient to justify liability for first degree
murder.” (People v. Lopez, supra, 88 Cal.App.5th at p. 574.) Felony-murder liability is
now limited to: “(1) ‘actual killer[s]’ (§ 189, subd. (e)(1)); (2) those who, ‘with the intent
to kill,’ aided or abetted ‘the actual killer in the commission of murder in the first degree’
([§ 189], subd. (e)(2)); and (3) ‘major participant[s] in the underlying felony’ who ‘acted
with reckless indifference to human life’ ([§ 189], subd. (e)(3)).” (People v. Wilson
(2023) 14 Cal.5th 839, 868–869.)
Senate Bill No. 1437 also added a procedure “for those convicted under the former
law to seek retroactive relief under the law as amended.” (Strong, supra, 13 Cal.5th at
p. 708.) Under section 1172.6, a petitioner must first file a petition containing a
declaration that he or she is statutorily eligible for relief, including that he or she “could
not presently be convicted of murder … because of changes to Section 188 or 189”
effectuated by Senate Bill No. 1437. (§ 1172.6, subds. (a)(3), (b)(1); see Strong, supra,
13 Cal.5th at p. 708.) Upon the filing of a facially sufficient petition, the court must
appoint counsel, if requested. (§ 1172.6, subd. (b)(3); People v. Lewis (2021) 11 Cal.5th
952, 970 (Lewis).) The prosecutor must file a response to the petition, and the petitioner
may file a reply. (§ 1172.6, subd. (c).) The court must then “hold a hearing to determine
whether the petitioner has made a prima facie case for relief.” (Ibid.) If the petitioner
makes a prima facie showing, the court must issue an order to show cause and hold an
evidentiary hearing. (Id., subds. (c), (d).)
The prima facie inquiry under section 1172.6 is “limited.” (Lewis, supra,
11 Cal.5th at p. 971.) The court “must accept as true a petitioner’s allegation that he or
9.
she could not currently be convicted of a homicide offense because of changes to
section 188 or 189 made effective” by Senate Bill No. 1437, “unless the allegation is
refuted by the record.” (Curiel, supra, 15 Cal.5th at p. 463.) To assess whether the
petitioner has made the required showing, the court may consider the record of conviction
to “distinguish petitions with potential merit from those that are clearly meritless.”
(Lewis, at p. 971.) It may not, however, “engage in ‘factfinding involving the weighing
of evidence or the exercise of discretion.’ ” (Lewis, at p. 972.) Accordingly, the court
may deny a petition at the prima facie stage only when the record of conviction
conclusively refutes the petitioner’s allegations and establishes ineligibility for relief as a
matter of law. (Curiel, at pp. 463, 470; Lewis, at pp. 971–972.)
Where the petitioner was convicted following a jury trial, the court “may look to
the jury’s verdicts, and the factual findings they necessarily reflect, to determine whether
the record of conviction refutes the factual allegations” in the petition. (Curiel, supra,
15 Cal.5th at p. 465.) The jury instructions are “critical” to this determination because
they define what the jury was required to find to return its verdict. (People v. Antonelli
(2025) 17 Cal.5th 719, 731; see Curiel, at pp. 441, 467.) If, under the instructions given,
the jury necessarily made findings that “encompass all of the elements of any theory of
murder” that remains valid under current law, those findings conclusively refute the
petitioner’s allegation that he or she could not presently be convicted of murder, and the
petitioner has not made a prima facie showing for relief. (Curiel, at pp. 470, 463, 465.)
The denial of a section 1172.6 petition at the prima facie stage is appropriate only
if the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at
p. 966.) We review that determination de novo. (People v. Ervin (2021) 72 Cal.App.5th
90, 101; People v. Bodely (2023) 95 Cal.App.5th 1193, 1200.)
10.
C. The verdicts and jury instructions establish that appellant was convicted
under a valid theory of murder.
We conclude the jury’s verdicts, viewed in light of the instructions given, establish
that appellant was convicted under a theory of murder that remains valid under current
law. The jury was not instructed on felony murder or aider and abettor liability under the
natural and probable consequences doctrine. As instructed, it could convict appellant of
murder only as the actual killer under CALCRIM No. 520 (appellant committed the act
causing death) or as a direct aider and abettor under CALCRIM No. 401 (appellant knew
the perpetrator intended to commit a crime and aided and abetted in its commission).
Senate Bill No. 1437 did not eliminate direct aiding and abetting liability for murder
because a direct aider and abettor must personally possess malice aforethought. (People
v. Gentile, supra, 10 Cal.5th at p. 848; see People v. Lopez (2024) 99 Cal.App.5th 1242,
1248.)
Appellant contends that although the jury was not instructed on the natural and
probable consequences doctrine, the instructions given still permitted it to convict him of
second degree murder without finding that he personally harbored malice. He relies on
authority recognizing that CALCRIM No. 401, when combined with CALCRIM
No. 520’s instructions on implied malice, may permit an aiding and abetting conviction
without a finding that the aider and abettor personally harbored malice. (People v. Lopez
(2026) 19 Cal.5th 639, 652–654; People v. Powell (2021) 63 Cal.App.5th 689, 714;
People v. Langi (2022) 73 Cal.App.5th 972, 982–983.) The potential ambiguity arises
because CALCRIM No. 401 requires the jury to find that the aider and abettor knew the
perpetrator intended to commit a particular “crime” and intended to aid in its
commission, whereas liability for directly aiding and abetting implied malice murder
turns on aiding the life-endangering act that caused death. (Lopez, at pp. 653–654;
Powell, at p. 714.) As these authorities explain, the instructions may permit conviction
based on an intent to aid the crime without requiring the jury to find that the aider and
11.
abettor knew the life-endangering act was dangerous to human life and acted with
conscious disregard for life. (Lopez, at pp. 653–654; Powell, at pp. 713–714; Langi, at
pp. 982–983.)
The instructions and verdict here, however, foreclose the possibility that the jury
convicted appellant without finding he personally harbored malice. The jury found
appellant guilty of first degree murder, and the sole theory of first degree murder
submitted to it was willful, deliberate, and premeditated murder. CALCRIM No. 521
expressly defined a willful killing as one in which appellant “intended to kill,” and
separately required the jury to find deliberation and premeditation. Thus, regardless of
whether the jury convicted appellant as the actual killer or as an aider and abettor, its first
degree murder verdict necessarily reflects a finding that appellant personally intended to
kill and therefore acted with express malice. (See People v. Estrada (2022)
77 Cal.App.5th 941, 945–946 [under comparable instructions, first degree murder verdict
necessarily reflected finding that the defendant acted with intent to kill, even if convicted
as aider and abettor].)
Appellant asserts in his reply brief, without citation to authority, that the jury’s
first degree murder verdict is immaterial because we subsequently reduced his conviction
to second degree murder on direct appeal, and second degree murder can be based on
either express or implied malice. We disagree.
The relevant inquiry at the prima facie stage of section 1172.6 proceedings is
“whether the record of conviction refutes the factual allegations” in the petition. (Curiel,
supra, 15 Cal.5th at p. 465.) Appellate opinions are “generally considered to be part of
the record of conviction.” (Lewis, supra, 11 Cal.5th at p. 972.) While a reviewing court
may not consider the factual summary in an appellate opinion (People v. Beaudreaux,
supra, 100 Cal.App.5th at p. 1238), section 1172.6, subdivision (d)(3) expressly permits
consideration of “the procedural history of the case recited in any prior appellate
opinion.”
12.
Here, our holding on direct appeal was plainly limited to insufficiency of the
evidence as to premeditation and deliberation.4 (People v. Burciaga, supra, F067420.)
On that basis alone, we reduced the conviction to second degree murder under
section 1260.5 The reduction did not entail new factfinding or otherwise alter the factual
determinations made by the jury that were unaffected by the evidentiary insufficiency we
identified.6 Rather, a reduction under section 1260 “merely brings the jury’s verdict in
4 Specifically, we stated: “While we have found insufficient evidence of
premeditation and deliberation to support [appellant’s] conviction for first degree murder,
there is overwhelming evidence of his malice and intent to kill to support a conviction for
second degree murder.” (People v. Burciaga, supra, F067420.)
To be clear, we do not rely on our prior characterization of the strength of the
evidence of express malice in concluding that appellant failed to make a prima facie
showing. We cite the statement only to highlight that the scope of our prior disposition
was limited to insufficiency of the evidence of premeditation and deliberation.
5 Section 1260 provides: “The court may reverse, affirm, or modify a judgment or
order appealed from, or reduce the degree of the offense or attempted offense or the
punishment imposed, and may set aside, affirm, or modify any or all of the proceedings
subsequent to, or dependent upon, such judgment or order, and may, if proper, order a
new trial and may, if proper, remand the cause to the trial court for such further
proceedings as may be just under the circumstances.”
6 While not cited by appellant, we note that People v. Barboza held that the jury’s
“collateral findings,” including its finding of intent to kill, did not survive the trial court’s
reduction of the defendant’s conviction to second degree murder for purpose of
section 1172.6 proceedings. (People v. Barboza (2021) 68 Cal.App.5th 955, 964.)
Barboza, however, is distinguishable, because the reduction involved a unique set of
factual circumstances not present here. The trial court reduced the conviction because the
actual killer had only been convicted of second degree murder in a separate trial. (Id. at
p. 960.) The court also struck the gang-murder special circumstance, which required a
finding of intent to kill. (Ibid.) The defendant’s jury had been instructed on several
theories of murder liability, including conspiracy, aiding and abetting, and the natural and
probable consequences doctrine, and it was not required to specify which theory
supported its verdict. (Ibid.) Under those circumstances, it was unclear which findings
survived the reduction. (Id. at pp. 965–966.) Here, by contrast, our reduction was based
solely on insufficient evidence of premeditation and deliberation and left the jury’s
separate finding of intent to kill intact. Thus, unlike in Barboza, our consideration of that
finding does not “contradict the court’s decision to reduce [appellant’s] conviction to
second degree murder.” (Id. at p. 966.)
13.
line with the evidence presented at trial,” and modifies the judgment “not by finding or
changing any fact, but by applying the established law to the existing facts as found by
the jury.” (People v. Navarro (2007) 40 Cal.4th 668, 679.) Nothing in our disposition
therefore disturbed the jury’s separate finding that appellant acted with the intent to kill.
We perceive no sound basis for disregarding that finding here.
Appellant’s invocation of the jury’s not true finding on the personal use of a
firearm enhancement is similarly unpersuasive. Even assuming, as appellant suggests,
that the finding indicates that the jury determined he was not the actual killer, the first
degree murder verdict necessarily entailed a finding that he aided and abetted the murder
with the intent to kill. That finding conclusively refutes any claim that the conviction
rested on imputed malice.
Appellant also notes that the trial court gave other jury instructions suggesting the
possible involvement of another person in the crime, including CALCRIM No. 373
(Other Perpetrator), and CALCRIM No. 3400 (Alibi). But neither instruction undermines
the jury’s ultimate finding that appellant was either the actual killer or directly aided and
abetted the murder with the intent to kill. CALCRIM No. 373 merely cautioned the jury
not to speculate about whether another person who may have been involved in the
charged offenses will be prosecuted, and CALCRIM No. 3400 described the implications
of an alibi defense. The instructions did not provide an alternative theory of murder
liability or permit the jury to convict appellant of murder based on imputed malice. And
even assuming the jury concluded another person was involved in the offenses, its first
degree murder verdict necessarily reflects a finding that appellant personally acted with
the intent to kill.
Lastly, appellant points to the People’s concession in Patton that “ ‘ “if the record
contains any indication [the petitioner] had an accomplice who may have been the killer,
a prima facie case ordinarily would be readily established, even by conclusory assertions
in a form petition.” ’ ” (Patton, supra, 17 Cal.5th at p. 560, fn. 4.) But Patton involved a
14.
prima facie determination following a no contest plea, not a jury trial in which the verdict
and instructions establish the factual findings the jury necessarily made. Curiel makes
clear that a petitioner fails to make a prima facie showing when the jury’s findings
“conclusively refute a petitioner’s allegation that he or she could not be convicted under
current law.” (Curiel, supra, 15 Cal.5th at p. 463.) As we have explained, the record
demonstrates the jury found appellant was either the actual killer or directly aided and
abetted the murder with the intent to kill. Under either theory, appellant remains liable
for murder under the law as amended by Senate Bill No. 1437.
To conclude, the record of conviction establishes the jury found appellant was
either the actual killer or directly aided and abetted the murder with the intent to kill,
conclusively refuting appellant’s allegation that he could not be convicted of murder
under current law. Accordingly, appellant failed to make a prima facie showing of
entitlement to relief, and this claim is without merit.
DISPOSITION
The June 5, 2025, order denying appellant’s section 1172.6 petition is affirmed.
LEVY, Acting P. J.
WE CONCUR:
MEEHAN, J.
GUERRA, J.
15.