Filed 8/24/26 P. v. Lopez CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084633
Plaintiff and Respondent,
v. (Super. Ct. No. SCN213801)
ROBERT LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Daniel B. Goldstein, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General,
for Plaintiff and Respondent.
I
INTRODUCTION
In 2007, a jury found Robert Lopez guilty of the first degree
premeditated murder of Julio Ramirez and the premeditated attempted
murder of Jesse R. following an incident in which Lopez and his fellow gang
members perpetrated a deadly knife attack on members of a rival gang.
In 2022, after the enactment of Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (hereafter, Senate Bill 1437), Lopez petitioned to have his convictions
vacated and to be resentenced under former Penal Code section 1170.95 (now
section 1172.6).1 The trial court found that Lopez’s record of conviction
precluded relief and denied the petition at the prima facie stage.
On appeal from the summary denial order, Lopez argues: (1) the trial
court erred by basing its decision on facts recited in our prior appellate
opinion affirming the judgment of conviction; (2) Lopez’s record of conviction
does not preclude relief because the jury instructions from his underlying
trial were sufficiently ambiguous that the jury may have convicted him based
on theories of liability that were abrogated by Senate Bill 1437; and (3) the
court erred by failing to consider his youth when deciding whether to issue an
order to show cause. In a prior opinion, we rejected Lopez’s first and third
arguments on the merits, and we concluded Lopez was procedurally barred
from advancing his second argument because it constituted a routine claim of
instructional error that, in our view, he had forfeited by failing to raise in the
direct appeal from his 2007 conviction. Given these determinations, we
affirmed the order summarily denying Lopez’s petition for resentencing.
After we issued our prior opinion, the Supreme Court granted review of
the case on January 15, 2025, and deferred further action pending the
1 Further undesignated statutory references are to the Penal Code.
2
outcome of another appeal, People v. Lopez, S287814. Thereafter, the
Supreme Court issued People v. Lopez (2026) 19 Cal.5th 639 (Lopez II), which
held that a petitioner’s failure to present an argument on direct appeal from
a conviction does not categorially preclude the petitioner from relying on the
argument to obtain resentencing under section 1172.6. The Supreme Court
then transferred the present matter back to us with directions to vacate our
decision and reconsider the cause in light of Lopez II.
Consistent with the Supreme Court’s transfer order, we have vacated
our prior opinion and reconsidered the cause in light of the Lopez II decision.
We now reject all three of Lopez’s arguments on the merits, and we again
affirm the order summarily denying the petition for resentencing.
II
BACKGROUND
A. Factual Background
In 2006, 16-year-old Lopez and other members of the Varrio San
Marcos gang executed a knife attack on two members of a rival gang, Julio
Ramirez and Jesse R. The attack left Ramirez dead and Jesse R. injured.
Lopez was charged with the first degree premeditated murder of
Ramirez (§ 187, subd. (a)) and the premeditated attempted murder of
Jesse R. (§§ 187, subd. (a), 664). At trial, the prosecution sought to prove
Lopez’s guilt under the theory that Lopez was either the direct perpetrator of
the crimes or, alternatively, a direct aider and abettor of the crimes.
Consistent with these theories of liability, the court did not instruct the jury
on felony murder or the natural and probable consequences doctrine.
The jury convicted Lopez of both offenses, found he personally used a
deadly and dangerous weapon in the commission of the offenses (§ 12022,
subd. (b)(1)), and found he committed the offenses for the benefit of, at the
3
direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)(1)). Lopez was sentenced to 42 years to life in state prison. On
appeal, our court affirmed the judgment of conviction. (People v. Lopez
(June 25, 2009, D052691 [nonpub. opn.] (Lopez I).)
B. Resentencing Proceeding
In 2022, Lopez filed a petition to have his convictions vacated and to be
resentenced under former section 1170.95. On a preprinted form prepared by
the Office of the Public Defender, Lopez placed checkboxes next to statements
averring that he met the statutory requirements for resentencing, including
statements that he was subject to prosecution and conviction under a now-
invalid theory of liability and he could not presently be convicted of his
crimes because of the changes to the state murder laws implemented by
Senate Bill 1437. After Lopez filed his petition, the trial court appointed
counsel to represent him in the resentencing proceeding.
The district attorney, acting on behalf of the People, filed an initial
response and a supplemental response opposing the petition for resentencing.
The district attorney claimed Lopez’s record of conviction precluded relief
because it showed that the jury necessarily found Lopez guilty of the offenses
as the direct perpetrator of the crimes or a direct aider and abettor—theories
of liability that remain valid notwithstanding Senate Bill 1437.
At the prima facie hearing, the trial court began by noting it had
reviewed “the record of conviction, the verdict forms, the jury instructions.”
The court observed that Lopez’s jury was instructed on willful, deliberate,
and premeditated murder, which required a finding of “intent to specifically
kill,” and the jury was instructed on “willful, deliberate, premediated, and
thus, intentional,” attempted murder. By contrast, the court noted, Lopez’s
jury was never instructed on felony murder or the natural and probable
4
consequences doctrine—theories of murder liability that were narrowed or
invalidated by Senate Bill 1437. Based on these findings, the court found
Lopez ineligible for relief and denied his petition for resentencing.
Lopez filed a timely notice of appeal from the denial order.
III
DISCUSSION
A. Senate Bill 1437
In 2018, the Legislature passed Senate Bill 1437, which went into effect
January 1, 2019. The Legislature approved the bill for the expressed purpose
of ensuring more equitable sentencing for “offenders in accordance with their
involvement in homicides.” (Stats. 2018, ch. 1015, § 1(b).) As the bill’s
uncodified findings and declarations explain, “It is a bedrock principle of the
law and of equity that a person should be punished for his or her actions
according to his or her own level of individual culpability.” (Id., § 1(d).)
“Senate Bill 1437 altered the substantive law of murder in two areas.
First, with certain exceptions, it narrowed the application of the felony-
murder rule by adding section 189, subdivision (e) to the Penal Code.
[Citation.] Under that provision, ‘A participant in the perpetration or
attempted perpetration of a [specified felony] in which a death occurs is liable
for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent
to kill, aided, abetted, counseled, commanded, induced, solicited, requested,
or assisted the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying felony and acted
with reckless indifference to human life, as described in subdivision (d) of
Section 190.2.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
5
“Second, Senate Bill 1437 imposed a new requirement that, except in
cases of felony murder, ‘a principal in a crime shall act with malice
aforethought’ to be convicted of murder. (§ 188, subd. (a)(3).) ‘Malice shall
not be imputed to a person based solely on his or her participation in a crime.’
(Ibid.) One effect of this requirement was to eliminate liability for murder as
an aider and abettor under the natural and probable consequences doctrine.
[Citation.] ‘[U]nder the natural and probable consequences doctrine, an
accomplice is guilty not only of the offense he or she directly aided or 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 the
accomplice aided and abetted (i.e., the nontarget offense).’ ” (Curiel, supra,
15 Cal.5th at p. 449.) Thus, under state law as it existed prior to the
enactment of Senate Bill 1437, “a defendant who aided and abetted an
intended [crime] could be liable for murder, if the murder was the natural
and probable consequence of the intended [crime]. [Citation.] The defendant
need not have intended the murder or even subjectively appreciated the
natural and probable consequences of the intended crime. [Citation.] Senate
Bill 1437 ended this form of liability for murder.” (Curiel, at p. 449.)
“Senate Bill 1437 also enacted former section 1170.95, which created a
procedural mechanism ‘for those convicted of felony murder or murder under
the natural and probable consequences doctrine to seek relief’ where the two
substantive changes described above affect a defendant’s conviction.” (Curiel,
supra, 15 Cal.5th at p. 449.) Thereafter, the Legislature enacted Senate Bill
No. 775, which broadened the resentencing procedure “to allow a person who
was convicted of murder under any theory under which malice is imputed to
a person based solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or who was
6
convicted of manslaughter when the prosecution was allowed to proceed on a
theory of felony murder or murder under the natural and probable
consequences doctrine, to apply to have their sentence vacated and be
resentenced.” (Stats. 2021, ch. 551.) “[F]ormer section 1170.95 was
renumbered as section 1172.6 without substantive change. (Stats. 2022,
ch. 58, § 10.)” (Curiel, at p. 449.) For the remainder of this opinion, we refer
to the resentencing statute as section 1172.6.
Thus, in its current form, the resentencing procedure may be initiated
by a “person convicted of felony murder or 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,
attempted murder under the natural and probable consequences doctrine, or
manslaughter.” (§ 1172.6, subd. (a).) The person must file a petition for
resentencing with the sentencing court, averring that: (1) a charging
document was filed against the petitioner that “allowed the prosecution to
proceed under a theory of 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, or
attempted murder under the natural and probable consequences doctrine,”
(id., subd. (a)(1)); (2) the petitioner was convicted of murder, attempted
murder, or manslaughter following a trial, or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder or
attempted murder (id., subd. (a)(2)); and (3) “[t]he petitioner could not
presently be convicted of murder or attempted murder because of changes to
Section 188 or 189” implemented by Senate Bill 1437 (id., subd. (a)(3)).
“When the trial court receives a petition containing the necessary
declaration and other required information, the court must evaluate the
7
petition ‘to determine whether the petitioner has made a prima facie case for
relief.’ ” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong), quoting
§ 1172.6, subd. (c).) The prima facie inquiry is a “limited” one. (People v.
Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) “ ‘ “[T]he 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. If so, the court must issue an order to show
cause.” ’ ” (Ibid.) Unless the parties waive a resentencing hearing and
stipulate the petitioner is entitled to the relief sought, the court must then
schedule an evidentiary hearing to determine whether to vacate the murder,
attempted murder, or manslaughter conviction, recall the sentence, and
resentence the petitioner on any remaining counts. (§ 1172.6, subd. (d)(1).)
At the prima facie stage, “a petitioner’s allegations should be accepted
as true, and the court should not make credibility determinations or engage
in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 974; see Strong, supra, 13
Cal.5th at p. 720 [“factfinding [is] prohibited at the prima facie stage”].)
“ ‘ “However, if the record [of conviction], including the court’s own
documents, ‘contain[s] facts refuting the allegations made in the petition,’
then ‘the court is justified in making a credibility determination adverse to
the petitioner.’ ” ’ ” (People v. Patton (2025) 17 Cal.5th 549, 563, quoting
Lewis, at p. 971.) In other words, a court should deny a petition at the prima
facie stage, without issuing an order to show cause, “if the record of
conviction conclusively establishes that the petitioner is ineligible for relief as
a matter of law.” (People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211.)
“The record of conviction includes documents from the petitioner’s jury
trial like the jury instructions and verdict forms.” (People v. Gallardo (2024)
8
105 Cal.App.5th 296, 301.) Although an appellate judicial opinion is
generally considered part of the record of conviction (Lewis, supra, 11 Cal.5th
at p. 972), a court conducting a prima facie review under section 1172.6 may
only consider a prior appellate judicial opinion for its recital of the procedural
history of the case, not the facts of the case. (§ 1172.6, subd. (d)(3); People v.
Lee (2023) 95 Cal.App.5th 1164, 1183–1184; People v. Flores (2022) 76
Cal.App.5th 974, 988.)
B. The Trial Court Did Not Rely on the Prior Appellate Opinion
Lopez argues the trial court erred by considering the facts of the case as
recited in our prior appellate opinion affirming the judgment, Lopez I, supra,
D052691. In support of this contention, Lopez points to the district attorney’s
initial response to the resentencing petition, which argued that the court
could rely on our prior appellate opinion. The district attorney also claimed
that “several settled facts in [our prior] appellate opinion” illustrated Lopez’s
ineligibility for relief.
Lopez has failed to carry his appellate burden of establishing error.
“Absent evidence to the contrary, we presume that the trial court knew the
law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042; see also
People v. Thomas (2011) 52 Cal.4th 336, 361 [“In the absence of evidence to
the contrary, we presume that the court ‘knows and applies the correct
statutory and case law.’ ”].) Therefore, absent evidence to the contrary, we
presume the trial court knew and faithfully followed the requirements of
section 1172.6, subdivision (d)(3), which prohibits courts from considering
prior appellate opinions for anything other than the procedural history of the
case during resentencing proceedings initiated under section 1172.6.
No contrary evidence rebuts this presumption. To be sure, the district
attorney argued the court could consider our prior opinion and referenced
9
facts from that opinion in the response to the resentencing petition. But the
court did not purport to adopt the district attorney’s argument, either at the
prima facie hearing or in its written denial order. Indeed, the court stated it
had reviewed “the record of conviction, the verdict forms, [and] the jury
instructions,” but it did not mention our prior appellate opinion. Because the
record does not show that the trial court considered our prior appellate
opinion, we reject Lopez’s claim of error.
C. Lopez’s Record of Conviction Precludes Relief
Next, Lopez contends the trial court erred when it found the record of
conviction conclusively negated the allegations of his resentencing petition.
As relevant here, resentencing is available only when the petitioner has
been “convicted of felony murder or 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, [or] attempted
murder under the natural and probable consequences doctrine,” (§ 1172.6,
subd. (a)), and the petitioner can only state a prima facie case for relief by
alleging, among other things, that the petitioner “could not presently be
convicted of murder or attempted murder because of changes to Section 188
or 189” that were implemented by Senate Bill 1437 (id., subd. (a)(3)). Lopez’s
record of conviction precludes him from satisfying these requirements.
As noted, Lopez’s jury was never instructed on felony murder or the
natural and probable consequences doctrine. In this case, the absence of
instructions on these theories of liability conclusively negates the possibility
Lopez was convicted of felony murder, murder under the natural and
probable consequences doctrine, or attempted murder under the natural and
probable consequences doctrine. (People v. Daniel (2020) 57 Cal.App.5th 666,
677 [because “no instructions were given on felony murder or murder under
10
the natural and probable consequences doctrine,” the petitioner was
“ineligible for relief as a matter of law”]; see also People v. Antonelli (2025) 17
Cal.5th 719, 731 [if a person has been convicted after a trial, “the jury
instructions will be critical” to the prima facie inquiry]; People v. Harden
(2022) 81 Cal.App.5th 45, 52 [“if the record shows that the jury was not
instructed on either the natural and probable consequences or felony-murder
doctrines, then the petitioner is ineligible for relief as a matter of law”].)
Nonetheless, Lopez argues the aiding and abetting jury instructions
that were given at his trial (CALCRIM Nos. 400 and 401) were sufficiently
vague that the jury may have convicted him of murder by relying on a now-
invalid “theory under which malice [was] imputed to [him] based solely on
[his] participation in a crime.” (§ 1172.6, subd. (a).) Therefore, Lopez claims,
he “could not presently be convicted … because of” the statutory changes to
section 188 or 189 implemented by Senate Bill 1437. (Id., subd. (a)(3).)
Specifically, Lopez argues the jury may have imputed malice to him based
solely on his participation in a crime because the aiding and abetting
instructions did not expressly state that the jury had to find he personally
harbored malice aforethought in order to find him guilty of murder.2
2 CALCRIM No. 400 (“Aiding and Abetting: General Principles”) stated:
“A person may be guilty of a crime in two ways. One, he or she may have
directly committed the crime. I will call that person the perpetrator. Two, he
or she may have aided and abetted a perpetrator, who directly committed the
crime. A person is equally guilty of the crime whether he [or] she committed
it personally or aided and abetted the perpetrator who committed it.”
11
In a prior opinion, we applied existing Court of Appeal precedent to
conclude that Lopez was procedurally barred from asserting this argument
because it was a routine claim of instructional error that could have been
raised—but was not raised—on direct appeal from the judgment. However,
the Supreme Court subsequently granted review in the present case and
deferred further action pending the outcome of People v. Lopez, S287814. The
Supreme Court then issued Lopez II, supra, 19 Cal.5th 639, which held that a
petitioner who could have raised a challenge on prior direct appeal is not
categorically precluded from obtaining relief under section 1172.6. The
Supreme Court transferred the present matter back to our court with
directions to vacate our decision and reconsider the cause in light of Lopez II.
We have done so. After reconsidering the cause, we now reject Lopez’s
instructional ambiguity argument on the merits. As noted, Lopez argues the
standard aiding and abetting instructions were sufficiently ambiguous that
they allowed the jury to convict him of murder as an aider and abettor
without finding that he acted with malice aforethought. In support of this
claim, Lopez relies on People v. Langi (2022) 73 Cal.App.5th 972.
In Langi, a petitioner who had been convicted of second degree murder
sought resentencing under former section 1170.95. (Langi, supra, 73
CALCRIM No. 401 (“Aiding and Abetting: Intended Crimes”) stated in
part: “To prove that the defendant is guilty of a crime based on aiding and
abetting that crime, the People must prove that: [¶] 1. The perpetrator
committed the crime; [¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3. Before or during the commission of the
crime, the defendant intended to aid and abet the perpetrator in committing
the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and
abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a
crime if he or she knows of the perpetrator’s unlawful purpose and he or she
specifically intends to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.”
12
Cal.App.5th at p. 977.) He argued the standard second degree murder and
aiding and abetting jury instructions that were given at his trial were
ambiguous and permitted the jury to find him guilty on a theory under which
malice was imputed to him based solely on his participation in a crime. (Id.
at pp. 980–981.) The second degree murder instruction stated that a killing
is a second degree murder if: (1) the killing resulted from an intentional act,
(2) the natural and probable consequences of the act are dangerous to human
life, and (3) the act was deliberately performed with knowledge of the danger
to, and with conscious disregard for, human life, but when the killing is the
direct result of such an act, it is not necessary to prove the defendant
intended that the act would result in death. (Id. at p. 981.) The aiding and
abetting instruction provided that a person aids and abets the commission of
a crime when he: (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, (3) by act or advice aids,
promotes, encourages or instigates the commission of the crime. (Ibid.)
The Langi court concluded these instructions did not conclusively
negate the possibility that the jury found the petitioner guilty of second
degree murder by imputing the implied malice of the actual killer, and
without finding that the petitioner personally acted with knowledge of the
danger to, and with conscious disregard for, human life. (Langi, supra, 73
Cal.App.5th at p. 984.) The court reasoned that although the aiding and
abetting instruction stated that a person aids or abets a crime if he or she
acts with knowledge of the unlawful purpose of the perpetrator, the second
degree murder instruction stated that the direct perpetrator need not act
with the unlawful intent of causing death. Thus, the court reasoned, “while
the perpetrator must have deliberately performed the fatal act ‘with
13
knowledge of the danger to, and with conscious disregard for, human life’
[citation], his purpose may have been only to strike or to injure, or
conceivably only to embarrass, the victim. Since the perpetrator’s purpose
need not have been to kill the victim, the aider and abettor’s knowledge of
that purpose similarly need not have been knowledge that the perpetrator
aimed to kill. If the perpetrator need not have had ‘murderous intent,’
certainly the aider and abettor need not have had such an intent.” (Id. at
pp. 982–983.) Under these instructions, “the jury was entitled to conclude
that, to be guilty as an aider and abettor of second degree murder, [the
petitioner] need only have intended to encourage the perpetrator’s intentional
act—in this case, punching [the victim]—whether or not [petitioner] intended
to aid or encourage [the victim’s] killing, and whether or not he personally
knew of and disregarded the risk of such a killing.” (Id. at p. 983.)
The present case is distinguishable from Langi. Unlike the petitioner
in Langi, who was convicted of second degree murder, Lopez was convicted of
first degree premeditated murder and premeditated attempted murder. The
trial court in Lopez’s case instructed the jury with CALCRIM No. 521
(“Murder: Degrees”), which stated, “The defendant is guilty of first degree
murder if the People have proved that he acted willfully, deliberately, and
with premeditation. The defendant acted willfully if he intended to kill. The
defendant acted deliberately if he carefully weighed the considerations for
and against his choice and, knowing the consequences, decided to kill. The
defendant acted with premeditation if he decided to kill before committing the
act that caused death.” Further, as noted, the standard aiding and abetting
instruction (CALCRIM No. 401) provided that a person aids and abets a
crime if the person “knew that the perpetrator intended to commit the crime,”
14
and, “[b]efore or during the commission of the crime, the [person] intended to
aid and abet the perpetrator in committing the crime ….”
Under these instructions, the jury either found that Lopez personally
killed Ramirez while harboring an intent to kill, or he directly aided and
abetted “the crime” of first degree premeditated murder with the intent to aid
and abet the actual killer in the commission of “the crime” of first degree
premeditated murder. “An intent to kill is the equivalent of express malice,
at least when there is no question of justification or excuse.” (People v. Coley
(2022) 77 Cal.App.5th 539, 547 (Coley).) Thus, the record of conviction in this
case precludes any possibility that the jury imputed malice to Lopez.3
Similarly, the record of conviction negates any possibility that the jury
found Lopez guilty of premeditated attempted murder under a natural and
probable consequences theory. As noted, the trial court did not instruct the
jury on the natural and probable consequences doctrine. Instead, the court
3 The prosecutor’s closing arguments corroborate our conclusion. In
closing, the prosecutor argued, “Malice can be implied, as the Court stated to
you and it can also be express[]. There’s a difference. We’re not dealing with
implied malice in this case. [¶] … [¶] This is the kind of case where we’re
dealing with express malice. [¶] … [¶] And you’re thinking well, maybe it’s
not an intent to kill because the knife didn’t penetrate that far. But it’s the
intent that matters. But further, under the aiding and abetting theory,
whether or not he even stabbed him, it doesn’t matter because under the law
of aiding and abetting it’s the gang attack that matters. The defendant had
the intent to kill. [¶]… [¶] It doesn’t matter whether the defendant’s knife
penetrated this far, this far or this far. He was obviously part of that joint
intent to try to kill both [Julio] Ramirez and Jesse R[]. That was direct. …
He murdered [Ramirez] in cold blood, he hunted him and Jesse R[.] down like
an animal and killed him and attempted to kill Jesse R[]. [¶] … [¶] This case
is really about the intent to kill. Same thing as malice, you intend to kill him
in a vicious way, like this case wreaks of malice. … [I]t wreaks of malice and
intent to kill. It’s not an accident, it’s not something that was not
foreseeable. He knew exactly what was going to happen and he intended that
it happen[.]”
15
provided the jury with the standard instruction on attempted murder
(CALCRIM No. 600), which stated, “To prove that the defendant is guilty of
attempted murder, the People must prove that: [¶] The defendant took at
least one direct but ineffective step toward killing another person [¶] AND [¶]
2. The defendant intended to kill that person.” The court also provided the
jury with a second attempted murder instruction (CALCRIM No. 601), which
stated, “If you find the defendant guilty of attempted murder, you must then
decide whether the People have proved the additional allegation that the
attempted murder was done willfully, and with deliberation and
premeditation. [¶] The defendant acted willfully if he intended to kill when
he acted. The defendant deliberated if he carefully weighed the
considerations for and against his choice and, knowing the consequences,
decided to kill. The defendant premeditated if he decided to kill before
acting.”
Following these instructions, the jury either found that Lopez himself
perpetrated the attempted premeditated murder and intended to kill the
victim, or he directly aided and abetted the attempted premeditated murder
while sharing the actual perpetrator’s intent to kill. (See People v. Mumin
(2023) 15 Cal.5th 176, 190 [“attempted murder requires a specific intent to
kill”]; People v. Lee (2003) 31 Cal.4th 613, 624 [“to be guilty of attempted
murder as an aider and abettor, a person must give aid or encouragement
with knowledge of the direct perpetrator’s intent to kill and with the purpose
of facilitating the direct perpetrator’s accomplishment of the intended
killing—which means that the person guilty of attempted murder as an aider
and abettor must intend to kill”].) Either scenario precludes Lopez from
demonstrating that he was found guilty of premeditated attempted murder
under a natural and probable consequences theory of liability.
16
In sum, the jury instructions and verdicts contained within the record
of conviction establish that the jury necessarily found Lopez guilty of his
crimes because he directly perpetrated them while harboring an intent to kill,
or he directly aided and abetted them while sharing the actual perpetrator’s
intent to kill. In either case, the trial court properly found that Lopez is
ineligible for resentencing as a matter of law. (Coley, supra, 77 Cal.App.5th
at pp. 547–548 [affirming denial of resentencing petition at prima facie stage
because “the jury necessarily found [petitioner] … personally harbored intent
to kill or express malice” when it convicted petitioner of attempted murder].)
D. The Trial Court Did Not Err by Failing to Consider Lopez’s Youth
Finally, Lopez argues that the trial court erred by failing to consider
his youth at the time of the crimes when the court assessed whether he
stated a prima facie case for relief.4 Lopez’s argument fails for two reasons.
As a preliminary matter, Lopez did not argue to the trial court that
youth is a relevant factor at the prima facie stage, nor did he ask the court to
consider the fact that he was 16 years old when he committed his crimes.
Thus, Lopez forfeited his claim of error. (See People v. Fuiava (2012) 53
Cal.4th 622, 653 [defendant “forfeited this claim by failing to raise this issue
below, when the trial court could have remedied the alleged shortcoming”];
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.’ ”].)
Even if Lopez had preserved his argument for our review, it fails on the
merits. At the evidentiary hearing stage of a section 1172.6 proceeding, the
court assumes the role of an independent fact finder and decides whether the
4 “Among the[] ‘hallmark features’ of youth are ‘immaturity, impetuosity,
and failure to appreciate risks and consequences,’ as well as the capacity for
growth and change.” (People v. Franklin (2016) 63 Cal.4th 261, 283.)
17
prosecution has proved, beyond a reasonable doubt, that the petitioner is
guilty of murder or attempted murder under current law. (§ 1172.6,
subd. (d)(3); see People v. Vargas (2022) 84 Cal.App.5th 943, 951.) Within
this context, the trial court necessarily must consider a petitioner’s youth
when assessing whether the petitioner acted with reckless indifference to
human life (People v. Keel (2022) 84 Cal.App.5th 546, 562), or implied malice
(People v. Pittman (2023) 96 Cal.App.5th 400, 416–418). We will even
assume, without deciding, that a petitioner’s youth may be relevant when a
court overseeing an evidentiary hearing is tasked with deciding whether the
prosecution has proved that a petitioner acted with express malice.
Even so, Lopez’s argument is without merit because a trial court
conducts a far more limited inquiry at the prima facie stage of a resentencing
proceeding. At this preliminary stage, the court resolves only the question of
whether the petitioner has stated a prima facie case for relief that would
entitle the petitioner to an order to show cause and an evidentiary hearing.
(See Strong, supra, 13 Cal.5th at p. 708.) Here, the court fulfilled this duty
when it correctly found that Lopez’s record of conviction—namely, the jury’s
implied findings that Lopez intended to kill his victims—conclusively negated
the allegations of his petition for resentencing. (Ante, § III(C).) Given the
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circumscribed scope of the prima face review, we conclude the trial court did
not err by failing to consider Lopez’s youth at the time of his crimes.5
IV
DISPOSITION
The denial order is affirmed.
MCCONNELL, P. J.
WE CONCUR:
BUCHANAN, J.
RUBIN, J.
5 Our decision in People v. Jimenez (2024) 103 Cal.App.5th 994, does not
dictate a different result. In Jimenez, the petitioner pleaded guilty to aiding
and abetting second degree murder when he was 19 years old. (Id. at p. 999.)
The petitioner sought resentencing of his conviction under section 1172.6,
and the trial court denied the resentencing petition after an evidentiary
hearing. (Jimenez, at p. 999.) The petitioner then filed another petition for
resentencing, which the trial court denied at the prima facie stage. (Id. at
p. 1000.) We reversed that order, reasoning that the doctrines of collateral
estoppel and law of the case did not bar the second resentencing petition due
to recent changes in the law regarding whether and how the trier of fact may
consider an offender’s relative youth in deciding whether he acted with
implied malice. (Id. at pp. 1004–1008.) Although Jimenez involved an appeal
from an order denying a petition for resentencing at the prima facie stage,
the Attorney General in that case argued for affirmance based solely on the
doctrines of collateral estoppel and the law of the case, and he did not dispute
that the petitioner had otherwise stated a prima facie case for relief. (Id. at
p. 1008, fn. 5.) Here, by contrast, the Attorney General does contend that
Lopez failed to state a prima facie case for relief, and we agree with him.
(Ante, § III(C).)
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