Filed 10/21/26 P. v. Cortes CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B330942
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA275162-01)
v.
JASIEL CORTES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Charlaine F. Olmedo, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Yun K. Lee, Deputy Attorneys
General, for Plaintiff and Respondent.
_______________________
In 2006, Jasiel Cortes was convicted by jury of the second
degree murder of Enrique Rivera. In 2023, Cortes’s petition for
resentencing under Penal Code1 former section 1170.95,
subdivision (a), now renumbered as section 1172.6, was denied by
the trial court at the prima facie stage. This court affirmed the
trial court’s summary denial of the petition for resentencing.
(People v. Cortes (Oct. 25, 2024, B330942 [nonpub. opn.].) In
doing so, we agreed with People v. Burns (2023) 95 Cal.App.5th
862 and People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921
that a petitioner may not raise a claim on a section 1172.6
petition that could have been raised on direct appeal. (People v.
Cortes, supra, B330942.)
The California Supreme Court granted review and
transferred the matter back to us with directions to vacate our
decision and reconsider the cause in light of People v. Lopez
(2026) 19 Cal.5th 639 (Lopez), which disapproved Burns and
Berry-Vierwinden and held that “ ‘[t]he mere fact that a
petitioner could have raised an analogous . . . claim of
instructional error at trial or in his original appeal does not
render him categorically ineligible for relief under section
1172.6.’ ” (Lopez, at p. 658.) Upon reconsideration, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
For context only, we recite facts and evidence presented at
trial from our opinion affirming Cortes’s conviction. (People v.
Cortes (Mar. 25, 2008, B194418) [nonpub. opn.].) On November
14, 2004, three men set upon Rivera as he walked home and beat
him to death with blunt instruments. (Ibid.) Each assailant
1 Undesignated statutory references are to the Penal Code.
2
carried a weapon: Cortes a bat, Uriel Orta a golf club, and
Francisco Olvera a metal pipe. (Ibid.)
A witness saw the men hitting something with their
weapons and then running away. (People v. Cortes, supra,
B194418.) Cortes told police Orta approached Rivera and
exchanged words with him. (Ibid.) Cortes admitted hitting
Rivera once on the back or the neck with the bat, causing Rivera
to fall, but said he (Cortes) then told the others they should leave
and walked away himself. (Ibid.) Olvera testified Cortes hit
Rivera in the back of the head with a bat after Rivera resisted
Cortes’s attempt to take Rivera’s bag. (Ibid.) Rivera fell to his
knees, and Cortes hit him in the back two or three times. (Ibid.)
Then, while Cortes stood nearby, Orta hit Rivera in the back of
the head three times with the golf club. (Ibid.)
According to a Los Angeles County medical examiner,
Rivera was killed by blunt force trauma most likely caused by
two different objects that could have been a bat and a golf club.
(People v. Cortes, supra, B194418.) A forensic pathologist
testifying for the defense testified that based on her review of the
autopsy report, she believed a bat swung with moderate force
inflicted non-fatal injuries to Rivera’s back, while the fatal blows
to his head were most likely caused by a golf club or tire iron.
(Ibid.)
After the close of evidence, the trial court instructed
Cortes’s jury on first degree willful, deliberate, and premeditated
murder; first degree felony murder; second degree murder; and
voluntary manslaughter.2 The jury was not instructed on the
2 We again take judicial notice of the jury instructions,
verdict form, and abstracts of judgment from Cortes’s prior
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natural and probable consequences doctrine. The trial court
instructed the jury on felony murder in conjunction with the first
degree murder charge only.
With respect to aiding and abetting, the jury was
instructed with former CALJIC No. 3.00: “Persons who are
involved in committing 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: [¶] 1. Those
who directly and actively commit the act constituting the crime,
or [¶] 2. Those who aid and abet the commission of the crime.”
The court also instructed the jury with former CALJIC
No. 3.01, which provided, “A person aids and abets the
commission of a crime when he or she: [¶] (1) With knowledge of
the unlawful purpose of the perpetrator, and [¶] (2) With the
intent or purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] (3) By act or advice aids,
promotes, encourages or instigates the commission of the crime.”
On August 7, 2006, a jury found Cortes guilty of second
degree murder (§ 187, subd. (a)). The jury also found true the
special allegation that Cortes personally used a deadly and
dangerous weapon, a bat, in the commission of the crime
(§ 12022, subd. (b)(1)). The trial court sentenced Cortes to 15
years to life in state prison.
In 2022, Cortes filed a petition for resentencing under what
is now section 1172.6. The trial court appointed counsel, received
briefing, and held a hearing to determine Cortes’s prima facie
eligibility for relief. The court denied the petition, finding Cortes
appeal, case No. B194418. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
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had not made a prima facie case for relief because he was
convicted of murder as a direct aider and abettor. The court
stated that based on its review of the record of conviction, “[T]he
jury was instructed o[n] first degree willful, deliberate, and
premeditated murder; first degree felony murder; and second
degree murder with actual malice. The jury was not instructed
on natural and probable consequences. The jury ended up
con[v]icting Mr. Cortes of second degree murder. And, looking at
the jury instruction, the jury instruction for second degree
murder was based upon [the] theory of liability that was actual
malice, and, thus, the jury made that determination in convicting
Mr. Cortes o[n] that charge. Therefore, the court finds that Penal
Code section 1172.6 is inapplicable here, and that Mr. Cortes is
not entitled to the relief and has not met his burden of
establishing a prima facie case and the petition is denied.”
Cortes appealed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) amended “the felony murder rule
and the natural and probable consequences doctrine, as it relates
to murder, to ensure that murder liability is not imposed on a
person who is not the 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, subd. (f).) Senate Bill 1437 amended section 188 by
adding a requirement that, when the felony-murder rule does not
apply, a principal in the crime of murder “shall act with malice
aforethought” and “[m]alice shall not be imputed to a person
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based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).)
Senate Bill 1437 also created former section 1170.95 (now
codified as section 1172.6), which set out a procedure by which
defendants who could not be convicted of murder under the
amended laws may petition for resentencing relief. (Stats. 2018,
ch. 1015, § 4.)
Senate Bill No. 775 (2021–2022 Reg. Sess.) amended
section 1172.6 to expand eligibility for resentencing to include not
only those “convicted of felony murder or murder under the
natural and probable consequences doctrine,” but also those
convicted of murder under any “other theory under which malice
is imputed to a person based solely on that person’s participation
in a crime.” (§ 1172.6, subd. (a), as amended by Stats. 2021, ch.
551, § 2.)
When a resentencing petition is filed under section 1172.6,
the trial court assesses whether petitioner has made a prima
facie case for relief. The prima facie inquiry is limited. The
court, accepting the petition’s factual allegations as true, makes a
“ ‘ “ ‘preliminary assessment’ ” ’ ” whether the petitioner would be
entitled to relief if those allegations were proven. (Lopez, supra,
19 Cal.5th at pp. 657–658.) In assessing whether a defendant
has made a prima facie case, the trial court is entitled to review
parts of the record of conviction, but it may not engage in
“ ‘ “factfinding involving the weighing of evidence or the exercise
of discretion.” ’ ” (Id. at p. 658.) If the petition and record
conclusively establish that the defendant is ineligible for relief,
the petition is properly denied at the prima facie stage. (Ibid.)
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When a trial court denies a section 1172.6 petition based on
the failure to make a prima facie case for relief, our review is de
novo. (People v. Cunningham (2025) 112 Cal.App.5th 1243,
1248.)
II. Analysis
In light of the transfer of this matter from the Supreme
Court, we address on the merits the question of whether the
petition was properly denied at the prima facie stage.
Cortes was charged only with murder. The only theory of
murder presented to the jury under which malice was not
required was first degree felony murder, which the jury rejected.
The jury was not instructed on the natural and probable
consequences doctrine.
Both Cortes and the People agree that the jury was offered
only two avenues to finding Cortes guilty of second degree
murder: as the actual killer or as a direct aider and abettor of the
killing. The jury was instructed with CALJIC Nos. 3.00 (defining
principals), 3.01 (defining aiding and abetting), 8.10 (defining
murder), 8.11 (defining malice aforethought), 8.20 (defining
deliberate and premeditated murder), and 8.30 (defining
unpremeditated murder of the second degree). In particular,
CALJIC No. 3.01 expressly instructed the jury it could only
convict Cortes of murder on an aiding and abetting theory if he
knew of the perpetrator’s or perpetrators’ intent; intended to
commit, encourage, or facilitate the commission of murder; and
aided, promoted, encouraged or instigated its commission by act
or advice. Therefore, to find Cortes guilty of second degree
murder, the jury had to find he personally harbored malice
aforethought either as the perpetrator or as a direct aider and
abettor. Accordingly, Cortes was not convicted of felony murder,
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murder under the natural and probable consequences doctrine, or
murder under any “other theory under which malice is imputed
to a person based solely on that person’s participation in a crime.”
(§ 1172.6, subd. (a)(1).) As the record established conclusively
that Cortes was ineligible for relief, the trial court properly
denied the petition for resentencing at the prima facie stage.
Cortes argues, however, that if the jury concluded he was
not Rivera’s actual killer, former CALJIC No. 3.00’s language
stating that principals in the commission of a crime are “equally
guilty,” when combined with other instructions, allowed the jury
to find him guilty of murder by imputing the express malice of
the other two assailants to him, thereby permitting Cortes to be
convicted of second degree murder as an aider and abettor
without finding he personally harbored malice. Noting that
former CALJIC No. 3.00 and CALJIC No. 3.01 referred to a crime
but did not specify the particular crime, he argues that “jurors
could have understood the instruction as referring to” murder,
robbery, or any other crime. Cortes contends “it is reasonably
possible that the jury could have found Orta and/or Olvera acted
with an intent to kill while Cortes acted only with the intent to
commit, or aid them in their commission of a robbery or an
assault that resulted in a killing.” If the jury did so, he argues, it
could have interpreted the instructions as meaning that Cortes
could be convicted of murder without sharing the homicidal
intent of the other assailants and convicted him of murder by
imputing the others’ malice to him.
Cortes describes this as “a reasonable interpretation” of the
record, but we disagree. If the jury had believed that Rivera was
killed unlawfully while Cortes was committing or aiding and
abetting a robbery, under the instructions given the jury would
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have convicted Cortes of felony murder—but they found him not
guilty of that crime. If the jury found the other perpetrator or
perpetrators acted with the intent to kill but Cortes only
intended to commit, or aid them in their commission of, a robbery
or an assault, then under CALJIC No. 3.01, the jury could not
have convicted him of second degree murder. CALJIC No. 3.01
expressly instructed the jury that “A person aids and abets the
commission of a crime when he or she: [¶] (1) With knowledge of
the unlawful purpose of the perpetrator, and [¶] (2) With the
intent or purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] (3) By act or advice aids,
promotes, encourages or instigates the commission of the crime.”
Applying this instruction, if the jury concluded Cortes only
intended to aid and abet a robbery or assault and did not intend
to aid, promote, encourage, or instigate a murder, the jury could
not have found he aided and abetted the commission of a murder.
The jury was instructed with CALJIC No. 1.01, which,
inter alia, directed: “Do not single out any particular sentence or
any individual point or instruction and ignore the others.
Consider the instructions as a whole and each in light of the
others.” We, too, “consider the instructions as a whole and
assume jurors are intelligent persons, capable of understanding
and correlating all jury instructions which are given.” (People v.
Barber (2020) 55 Cal.App.5th 787, 798.) No jury considering the
instructions as a whole and not singling out one instruction while
ignoring others could have interpreted former CALJIC No. 3.00
and CALJIC No. 3.01 as Cortes suggests.
The trial court properly denied Cortes’s petition for
resentencing at the prima facie stage.
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DISPOSITION
The order denying Cortes’s section 1172.6 resentencing
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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