Filed 9/30/26 P. v. Gaytan CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B334098
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA350813
v.
HERSON GAYTAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David V. Herriford, Judge. Affirmed.
Jennifer Peabody and David Andreasen, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A jury convicted Herson Gaytan of first degree murder.
The trial court denied Gaytan’s petition for resentencing under
Penal Code section 1172.6 (section 1172.6), and we affirmed.
(People v. Gaytan (Nov. 19, 2024, B334098) [nonpub. opn.]
(Gaytan).) The Supreme Court granted review and stayed
further action pending resolution of a related issue in another
case. After issuing its decision in People v. Lopez (2026) 19
Cal.5th 639 (Lopez), the Supreme Court transferred the case to
us with instructions to vacate and reconsider our decision in light
of Lopez. We affirm.
We summarize the facts described in more detail in our
earlier opinion, People v. Gaytan et al. (Oct. 14, 2011, B226031)
[nonpub. opn.]. Tow truck driver Joseph Mosesean stopped
behind a Volvo at an intersection. Mosesean saw the passenger
side window of an Altima next to the Volvo roll down. Then he
saw a hand holding a gun extend out of the rear driver’s side
window of the Volvo and begin shooting at the Altima. The Volvo
sped off, and Mosesean followed. The Volvo stopped, and Gaytan
got out of the front passenger side door and ran away. The Volvo
took off again. When it stopped again, the driver and the
passenger in the back both got out and ran off as well. Police
eventually apprehended all three men. Police found casings from
two guns in the Volvo. They found the two guns used in the
shooting near where police arrested Gaytan after he left the
Volvo.
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In April 2010, a jury convicted Gaytan and two
confederates of first degree murder and found true gang and
firearm enhancements. The trial court gave CALJIC No. 3.01 on
direct aiding and abetting. The trial court instructed on two
theories of first degree murder: willful, deliberate, and
premeditated murder (CALJIC No. 8.20) and drive-by murder
(CALJIC No. 8.25.1). Each includes as an element the intent to
kill a human being. (CALJIC 8.11, 8.20, 8.25.1.)
After the legislature passed Senate Bill No. 1437 (2017-
2018 Reg. Sess.), providing a mechanism for defendants to
petition for resentencing if they could not be convicted after the
changes to sections Penal Code sections 188 and 189, Gaytan
filed such a petition. After a hearing, the trial court denied the
petition.
Gaytan appealed, arguing the jury instructions the court
gave at his trial allowed the jury to find him guilty as an aider
and abettor without finding he personally harbored malice.
(Gaytan, supra (Nov. 19, 2024, B334098) [nonpub. opn.].) We
rejected this argument based on the fact that Gaytan could have
made this argument in his first appeal, and it was therefore not
based on a change to sections 188 and 189 as required by section
1172.6, subdivision (a)(3). (Id.) We further held that the
instructions the trial court gave required a finding of intent to
kill. (Id.)
In Lopez, the Supreme Court clarified that “petitioners who
could have raised their challenges to imputed malice on prior
direct appeal” are not categorically ineligible for relief under
section 1172.6. (Lopez, supra, 19 Cal.5th at p. 649.) The Court
further recognized that defendants may properly seek relief
under section 1172.6 based on instructional ambiguity, “whether
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that ambiguity is plainly apparent on the face of the instructions
or revealed only by flawed argument.” (Id. at p. 667.)
In his supplemental briefing to this court, Gaytan raises a
new argument based on Lopez’s guidance that courts should
consider the effect of closing arguments in determining whether
jury instructions were ambiguous. We grant Gaytan’s request to
take judicial notice of the transcript from his trial to evaluate this
argument. (Evid. Code § 452(d)(1).)
We lay out his theory. During closing argument, Gaytan’s
counsel and counsel for his co-defendant posited theories of the
case in which Gaytan was either not in the car or a mere
passenger in the car. There was no evidence of anything that
occurred among the occupants of the Volvo prior to the shooting.
In his closing, the prosecutor stated when Gaytan got out of the
Volvo, he was “carrying these [guns] to get rid of them, and that’s
exactly what he does.” To be guilty as an aider and abettor of
murder, Gaytan must have formed the intent to aid and abet
before or during the commission of the murder. (People v. Celis
(2006) 141 Cal.App.4th 466, 473–474.) The aiding and abetting
instruction given did not specify this timing limitation. Gaytan
argues the state of the evidence and closing arguments could
have allowed the jury to conclude he aided and abetted only by
helping get rid of the guns and that his intent to do this was
formed after the shooting.
This is incorrect. Gaytan cites People v. Sedillo (2015) 235
Cal.App.4th 1037 for the proposition that an aiding and abetting
instruction that does not specify the time frame in which the
intent must be formed can be insufficient where there is little
evidence of what occurred before. (Id. at p. 1067.) He omits
Sedillo’s further conclusion that this error was harmless because
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of the present tense of the aiding and abetting instruction. (Ibid.)
“If the defendant is acting in the present tense, it follows
necessarily that the intent to aid and abet had to be formed
before the defendant acted.” (Ibid.)
The same is true here. A jury would not interpret these
instructions as allowing for Gaytan to form the intent to aid and
abet killing a human being after the murder already occurred.
Gaytan’s theory that the jury could have believed he intended to
aid his confederates in killing after the killing occurred is
illogical. At best, that would support a theory of intent to aid in
covering up a murder or escaping justice for a murder. No
attorney advanced these theories. As the prosecutor points out,
Gaytan’s and his co-defendants’ attorneys argued for acquittal if
the jury did not accept the prosecutor’s theory of the case.
The prosecutor urges us to adopt the “reasonable
likelihood” standard for evaluating claims of potential
misinterpretation of jury instructions at the prima facie stage of
review under section 1172.6. Gaytan asks us not to. It is
impossible the jury interpreted the instructions in the manner
Gaytan proposes, so we need not reach this question.
DISPOSITION
We affirm.
WILEY, J.
We concur:
STRATTON, P. J. VIRAMONTES, J.
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