Filed 9/21/26 P. v. Luna CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089777
Plaintiff and Respondent,
(Super. Ct. No. 05CM9002-003)
v.
RAFAEL ANTONIO LUNA,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Sylvia W. Beckham, 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, Amanda D. Cary, Christina
H. Simpson, and William K. Kim, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Petitioner Rafael Antonio Luna appeals from the denial of his fifth petition for
resentencing pursuant to Penal Code section 1172.6.1 It appears the trial court denied the
petition on the ground the issues raised therein were previously ruled upon. Petitioner
argues the court erred in declining to consider the petition on the merits because new
authority undermines the basis for the prior denials. He additionally argues the record
does not establish he is ineligible for resentencing as a matter of law.
We agree with petitioner that the doctrine of issue preclusion did not bar
consideration of his petition on the merits. Nonetheless, the record establishes his
ineligibility for resentencing as a matter of law and the petition therefore was properly
denied. Accordingly, we affirm.
BACKGROUND2
Briefly stated, petitioner was charged, along with codefendants Victor Manuel
Castaneda, Gonzalo Murguia, and Jose Naranjo, in relation to the fatal shooting of
Marcos Villegas. Petitioner was tried separately and, on March 29, 2006, a jury
convicted him of first degree murder (§ 187, subd. (a); count 1) and conspiracy to commit
murder (§§ 182, subd. (a)(1), 187, subd. (a); count 2). A gang-murder special
circumstance was found true (§ 190.2, subd. (a)(22)), as were gang, firearm, and great
bodily injury enhancements (§§ 186.22, subd. (b)(4), (5), 12022.53, subds. (d), (e)(1),
12022.7, subd. (a)). Petitioner was sentenced on count 1 to a term of life without the
possibility of parole. Sentence on the remaining count and enhancements was imposed
and stayed. (§ 654.) On appeal, we reduced the stayed sentence on count 2, struck a
1 Undesignated statutory references are to the Penal Code. Some of petitioner’s
prior petitions were filed pursuant to former section 1170.95. Former section 1170.95
was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We
refer to the current section 1172.6 in this opinion.
2 We dispense with a statement of facts as the underlying facts are not before us.
2.
parole revocation fine, and ordered the abstract of judgment amended to reflect these
changes. In all other respects, we affirmed. (People v. Luna (Mar. 16, 2007, F050272)
[nonpub. opn.].)
On March 11, 2019, and May 10, 2019, respectively, petitioner filed his first two
petitions for resentencing pursuant to section 1172.6. Both were denied without
prejudice on procedural grounds. (People v. Luna (F081618, Feb. 18, 2022) [nonpub.
opn.].)
On June 24, 2019, petitioner filed his third petition for resentencing pursuant to
section 1172.6. The prosecutor opposed the petition. The trial court denied the petition
upon reviewing the facts described in our opinion in petitioner’s direct appeal and finding
that petitioner conspired to commit murder and aided and abetted in the murder with the
intent to shoot the victim. (People v. Luna, supra, F081618.)
On appeal, we noted the trial court appeared to have engaged in improper
factfinding on prima facie review of the petition. However, we concluded the error was
harmless because the record established petitioner was ineligible for resentencing as a
matter of law. Specifically, we noted that the jury instruction on the gang-murder special
circumstance required the jury to find that petitioner intended to kill, and the jury
therefore made the findings necessary to sustain the murder conviction under current law.
Accordingly, we affirmed the order denying the petition. (People v. Luna, supra,
F081618.)
On June 29, 2023, the trial court issued an order denying petitioner’s fourth
petition for resentencing pursuant to section 1172.6, which had been filed March 24,
2023. The fourth petition is not contained in the record on appeal. However, as set forth
in the order denying the petition, petitioner cited Senate Bill No. 775 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 551, § 2) as a change in law that created a new basis for his claims
that could not have been raised in the prior petition. The court determined this
amendment did not apply to petitioner, no other new facts or changed circumstances had
3.
arisen, and principles of res judicata and collateral estoppel therefore barred the petition.
Accordingly, the petition was denied. It appears petitioner did not appeal.
On December 20, 2023, petitioner filed his fifth petition for resentencing. Relying
on In re Lopez (2023) 14 Cal.5th 562 and People v. Curiel (2023) 15 Cal.5th 433
(Curiel), he argued the jury finding on the gang-murder special circumstance, standing
alone, did not show the jury found him guilty of murder under a currently valid theory
and therefore did not establish his ineligibility for resentencing as a matter of law.
The People opposed the petition, arguing it was barred by res judicata and
collateral estoppel. However, the People also argued petitioner was ineligible for relief
on the merits and failed to make a prima facie case for relief. The People “direct[ed] the
court to and incorporate[d] by reference” our prior opinion (People v. Luna, supra,
F081618) and the trial court’s orders relating to the third petition; the People’s prior
briefing, evidence, and arguments submitted in the trial court and this court; and the
transcript of petitioner’s trial as well as the jury’s verdict.
In a supplemental response to the petition, the People noted petitioner was
convicted of conspiracy to commit murder, which required the jury to find he had the
specific intent to kill, and the jury was not instructed on the natural and probable
consequences doctrine or any theory of liability relating to conspiracy to commit some
other crime. The People therefore argued the conspiracy instructions foreclosed the
possibility the jury convicted him under an imputed malice theory.
The matter was heard on April 28, 2025. The court asked petitioner’s counsel how
he wished to proceed. Counsel responded that, based on the pleadings, he could not find
anything contrary to the prosecutor’s position that the petition had been ruled on and
denied. The prosecutor stated that the question before the court was whether a successive
petition could be heard and, if so, whether petitioner was still subject to murder liability
under current law. The court stated, “I think he is not entitled [to] resentencing based on
the appellate court decisions, the argument you submitted. And I think, [petitioner’s
4.
counsel], you agreed with that, correct?” Petitioner’s counsel stated his research “would
indicate that this matter has already been heard and ruled on.” After further discussion,
the court stated, “Okay, then I am going to take the matter off calendar then.”3
This appeal followed.
DISCUSSION
I. Section 1172.6 Procedure
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill No. 1437) “altered the substantive law of murder in two areas.” (Curiel, supra, 15
Cal.5th at p. 448.) First, the bill narrowed the scope of the felony-murder rule “so that a
‘participant in the perpetration or attempted perpetration of a [specified felony] in which
a death occurs’ can be liable for murder only if ‘[t]he person was the actual killer’; ‘[t]he
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’; or ‘[t]he person was a major participant in the underlying
felony and acted with reckless indifference to human life.’ ” (People v. Arellano (2024)
16 Cal.5th 457, 467–468, quoting § 189, subd. (e)(1)–(3).) Second, the bill “eliminate[d]
liability for murder as an aider and abettor under the natural and probable consequences
doctrine”4 by requiring that, “except in cases of felony murder, ‘a principal in a crime
shall act with malice aforethought’ to be convicted of murder.” (Curiel, at p. 449,
quoting § 188, subd. (a)(3).) Now, “ ‘[m]alice shall not be imputed to a person based
solely on his or her participation in a crime.’ ” (Curiel, at p. 449.)
3 We construe the court’s decision to take the matter off calendar as a denial of the
petition.
4 Under the former natural and probable consequences doctrine, “ ‘ “an aider and
abettor [wa]s guilty not only of the intended crime, but also ‘for any offense [including
murder] that was a “natural and probable consequence” of the crime aided and
abetted.’ ” ’ ” (In re Lopez, supra, 14 Cal.5th at p. 579.)
5.
Additionally, Senate Bill No. 1437 added former section 1170.95, now section
1172.6, to provide a procedure for those convicted of a qualifying offense “ ‘to seek
relief’ where the two substantive changes described above affect a defendant’s
conviction.” (Curiel, supra, 15 Cal.5th at p. 449.) Under section 1172.6, an offender
seeking resentencing must first file a petition in the sentencing court, and the sentencing
court must determine whether the petitioner has made a prima facie showing that he or
she is entitled to relief. (§ 1172.6, subds. (a)–(c); accord, People v. Strong (2022) 13
Cal.5th 698, 708.) “ ‘If the petition and record in the case establish conclusively that the
[petitioner] is ineligible for relief, the trial court may dismiss the petition.’ ” (Curiel, at
p. 450.) However, if the sentencing court determines the petitioner has made a prima
facie showing, the court must issue an order to show cause and hold a hearing to
determine whether to vacate the murder conviction. (§ 1172.6, subds. (c), (d)(1).)
Our Supreme Court has emphasized that “the prima facie inquiry . . . is limited.”
(People v. Lewis (2021) 11 Cal.5th 952, 971.) “[T]he ‘prima facie bar was intentionally
and correctly set very low.’ ” (Id. at p. 972.) The court may not engage in “ ‘factfinding
involving the weighing of evidence or the exercise of discretion’ ” at the prima facie
stage. (Ibid.) “Like the analogous prima facie inquiry in habeas corpus proceedings,
‘ “the 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.” ’ [Citation.]
‘[A] court should not reject the petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing.’ [Citation.] ‘However, if the record,
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.” ’ ” (Id. at p. 971.)
We review the court’s prima facie inquiry de novo. (People v. Williams (2022) 86
Cal.App.5th 1244, 1251.)
6.
II. Analysis
Petitioner argues the court erred in declining to consider his fifth petition because
the true finding on the gang special circumstance, standing alone, is no longer sufficient
to justify denial of the petition. The People do not argue otherwise. Rather, the People
argue the petition was properly denied because the record of conviction establishes
petitioner is ineligible for resentencing, irrespective of our prior decision relying on the
finding on the gang-murder special circumstance. Petitioner disputes that the record
establishes he is ineligible for resentencing as a matter of law and instead argues the
instructions provided the jury a path to find him guilty of murder under the natural and
probable consequences doctrine. We agree with petitioner that the fifth petition is not
barred by issue preclusion. However, as we explain, we conclude the record establishes
petitioner is ineligible for resentencing as a matter of law.
A. Issue Preclusion
Section 1172.6 does not prohibit successive petitions. Courts analyzing the
preclusive effect of prior section 1172.6 petitions have done so under the doctrine of
issue preclusion. (E.g., People v. Farfan (2021) 71 Cal.App.5th 942, 950–951.) Issue
preclusion bars relitigation of issues “ ‘only if several threshold requirements are
fulfilled. First, the issue sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second, this issue must have been actually litigated in
the former proceeding. Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought must be the same as, or in
privity with, the party to the former proceeding.’ ” (People v. Strong, supra, 13 Cal.5th
at p. 716.) However, issue preclusion does not apply where there has been a significant
change in law since the prior decision was rendered that warrants reexamination of the
issue. (Curiel, supra, 15 Cal.5th at p. 454.)
7.
In our opinion in petitioner’s prior appeal, we held that the jury’s intent to kill
finding on the gang special circumstance rendered him ineligible for resentencing as a
matter of law. (People v. Luna, supra, F081618.) After our remittitur issued, our
Supreme Court decided Curiel, holding that such a finding meets the requirements for
issue preclusion (Curiel, supra, 15 Cal.5th at p. 453), and is relevant to the prima facie
determination (id. at p. 460), but is only one element of a valid theory of murder liability
and therefore does not by itself establish resentencing ineligibility (id. at p. 463). Curiel
is a significant change in law that postdates the resolution of petitioner’s prior petition.
Following Curiel, the gang special circumstance, standing alone, may be insufficient to
establish petitioner’s ineligibility for resentencing. We have not previously considered
whether the remainder of the record supports the determination that petitioner is
ineligible for resentencing as a matter of law. Accordingly, reexamination of the issue of
petitioner’s resentencing eligibility is warranted. (See Curiel, at pp. 454–455.) The court
erred in denying the petition without considering whether petitioner made a prima facie
case for resentencing in light of Curiel.5
5 The People acknowledge the court did not address petitioner’s argument on the
merits but suggest the basis for the court’s denial of the petition is unclear. However, the
reporter’s transcript reflects the court addressed two issues at the hearing on the petition:
(1) whether the issues raised in the petition had been ruled upon and (2) whether
petitioner was entitled to resentencing on the gang allegations due to changes in law,
presumably a reference to Assembly Bill No. 333 (2021–2022 Reg. Sess.). As to the first
issue, the court determined petitioner was not entitled to resentencing “based on the
appellate court decisions, [and] the argument [the prosecutor] submitted.” As to the
second issue, the court determined petitioner’s conviction remained final because he was
not entitled to resentencing pursuant to section 1172.6. Because his conviction remained
final, “he would not be entitled to have the [c]ourt look at the gang allegation.” We
therefore disagree that the record lacks clarity as to the basis for the court’s denial of the
petition.
8.
B. Relevant Law of Murder
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) “Express
malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or
know[s], to a substantial certainty, that the result will occur.’ ” ’ ” (People v. Smith
(2005) 37 Cal.4th 733, 739 (Smith).)
“Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ ”
(Smith, supra, 37 Cal.4th at p. 739.) Intent to kill is an element of both first degree
premeditated murder (People v. Clark (2016) 63 Cal.4th 522, 624), and conspiracy to
commit murder (People v. Ware (2022) 14 Cal.5th 151, 167). Because there is rarely
direct evidence of a defendant’s intent, intent to kill may “be inferred from the
defendant’s acts and the circumstances of the crime.” (Smith, at p. 741.)
“ ‘[D]irect aiding and abetting is based on the combined actus reus of the
participants and the aider and abettor’s own mens rea.’ ” (People v. Reyes (2023) 14
Cal.5th 981, 990–991 (Reyes).) “ ‘ “[A]n aider and abettor with the necessary mental
state is guilty of the intended crime.” ’ ” (In re Lopez, supra, 14 Cal.5th at p. 579.) “[I]n
order for an accomplice to be liable for directly aiding and abetting a murder, the
accomplice must ‘ “aid[] the commission of that offense with ‘knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in achieving those unlawful
ends.’ ” ’ ” (People v. Morris (2026) 19 Cal.5th 671, 691.) To be liable as a direct aider
and abettor to first degree murder, the aider and abettor must form “ ‘his [or her] own
culpable intent’ ” (In re Lopez, at pp. 579, 585), must know “ ‘the full extent of the
perpetrator’s criminal purpose’ ” (id. at p. 585), and must aid or encourage the
commission of the murder “ ‘with the intent or purpose of committing, encouraging, or
facilitating its commission’ ” (id. at pp. 579, 585). (See People v. McCoy (2001) 25
Cal.4th 1111, 1118, 1122.) In short, “ ‘the aider and abettor must know and share the
murderous intent of the actual perpetrator.’ ” (In re Lopez, at p. 585.)
9.
“The crime of conspiracy is defined in the Penal Code as ‘two or more persons
conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of an overt
act ‘by one or more of the parties to such agreement’ in furtherance thereof. [Citations.]
‘Conspiracy is a “specific intent” crime…. The specific intent required divides logically
into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the
offense which is the object of the conspiracy…. To sustain a conviction for conspiracy to
commit a particular offense, the prosecution must show not only that the conspirators
intended to agree but also that they intended to commit the elements of that offense.’ ”
(People v. Swain (1996) 12 Cal.4th 593, 600.) “ ‘[A]ll conspiracy to commit murder is
necessarily conspiracy to commit premeditated and deliberated first degree murder.’ ”
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 641.) Conspiracy to commit murder may
not be based on a theory of implied malice and instead requires proof of express malice.
(Id. at p. 642.)
C. Jury Instructions Given
The jury instruction on murder informed the jury that, to prove murder, the People
were required to prove that (1) petitioner “committed an act that caused the death of
another person,” and (2) when he acted “he had a state of mind called malice
aforethought.” The instructions then went on to define express and implied malice.
Relevant here, the instructions provided, “The defendant acted with express malice if he
unlawfully intended to kill.” The jury also was instructed regarding deliberation and
premeditation in relevant part as follows: “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.”
10.
The jury also was instructed on aiding and abetting, including the following
general introductory instruction:
“A person may be guilty of a crime in two ways. One, he or she may
have directly committed the crime. Two, he or she may have aided and
abetted someone else, who committed the crime. In these instructions, I
will call that other person the ‘perpetrator.’ A person is equally guilty of
the crime whether he or she committed it personally or aided and abetted
the perpetrator who committed it.
“Under some specific circumstances, if the evidence establishes aiding
and abetting of one crime, a person may also be found guilty of other
crimes that occurred during the commission of the first crime.” (Italics
added.)
There was no further instruction on the circumstances in which a person who aids
and abets one crime may be found guilty of other crimes. The instruction went on to
explain:
“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.”
11.
The jury also was instructed on conspiracy to commit murder, as follows:
“To prove that the defendant is guilty of this crime, the People must
prove that:
“1. The defendant intended to agree and did agree with Victor
Castaneda, Gonzalo Murguia, Jose Naranjo or Jose Vallodares to commit
murder;
“2. At the time of the agreement, the defendant and one or more of
the other alleged members of the conspiracy intended that one or more of
them would commit murder;
“3. (The) defendant or Victor Castaneda, Gonzalo Murguia, Jose
Naranjo and Jose Vallodares or all of them committed at least one of the
overt acts alleged to accomplish the murder;
“A. On or about August 28,[]2004 Gonzalo Murguia and Jose
Nar[]anjo went to [an address] in Avenal with a firearm;
“B. On or about August 28, 2004 Rafael Luna drove Jose
Valladores to [the address] in Avenal;
“C[.] On or about August 28, 2004 Jose Valladores shot Marcos
Villegas;
“D[.] On or about August 28,[]2004 Victor Castaneda drove Joe
Diaz and Jose Jaime from Avenal to Coalinga
“AND
“4. At least one of these overt acts was committed in California.
“To decide whether the defendant and one or more of the other
alleged members of the conspiracy intended to commit murder, please refer
to [CALCRIM Jury] Instructions 520 and 521, [the instructions on murder,
malice aforethought, and deliberation and premeditation], which define that
crime.
“The People must prove that the members of the alleged conspiracy
had an agreement and intent to commit murder.”
In addition to the foregoing, the instruction on the gang-murder special
circumstance required a finding that “[t]he defendant intended to kill.”
12.
Finally, the jury was instructed on “assaultive and battery crimes,” specifically
assault with a deadly weapon or force likely to produce great bodily injury.
(Capitalization & boldface omitted.) The purpose of this instruction is unclear from the
record. Petitioner was not charged with assault with a deadly weapon or conspiracy to
commit assault with a deadly weapon and these theories were not presented to the jury as
either charged or included offenses. Based on the organization of the instructions, it
appears the instruction on assault with a deadly weapon may have been given in relation
to the primary activities and predicate acts necessary to prove the existence of a criminal
street gang for purposes of the gang enhancement and gang special circumstance.
Notably, the standard instruction on assault with a deadly weapon was modified to
remove most references to “the defendant,” and to replace them with references to “the
person.”6 For example, the instruction defined the elements of assault with a deadly
weapon to include that “[t]he person did an act that by its nature would directly and
probably result in the application of force to another person,” “[t]he person did that act
willfully,” and “[w]hen the person acted, he was aware of facts that would lead a
reasonable person to realize that her act by its nature would directly and probably result
in the application of force to someone.” (Italics added.)
D. Petitioner Is Ineligible for Resentencing As a Matter of Law
Petitioner argues the record does not establish his ineligibility for resentencing
because the instructions allowed the jury to convict him under a natural and probable
consequences theory. He acknowledges the jury found he acted with intent to kill but
argues the instructions did not require the jury to find that he aided and abetted the
murder, as opposed to another crime such as assault with a firearm, with intent to kill. As
we explain, we conclude the instructions and verdict reflect that petitioner was convicted
6 The instruction did retain reference to “the defendant” in one instance: “When
the defendant acted, he had the present ability to apply force likely to produce great
bodily injury, or with a deadly weapon or with a firearm.” (Italics added.)
13.
of murder under a valid theory of direct aiding and abetting. Accordingly, he is ineligible
for resentencing as a matter of law and the petition was properly denied. (People v.
Zapien (1993) 4 Cal.4th 929, 976 [“ ‘ “No rule of decision is better or more firmly
established by authority, nor one resting upon a sounder basis of reason and propriety,
than that a ruling or decision, itself correct in the law, will not be disturbed on appeal
merely because given for a wrong reason. If right upon any theory of the law applicable
to the case, it must be sustained regardless of the considerations which may have moved
the trial court to its conclusion.” ’ ”]; accord, People v. Camacho (2022) 14 Cal.5th 77,
123–124.)
As stated, the jury found petitioner guilty of conspiracy to commit murder. In
other words, murder was the target offense. To convict petitioner, the jury necessarily
found he agreed to commit murder and intended that he or one of his coconspirators
would commit murder. Moreover, the aiding and abetting instructions required the jury
to find that petitioner knew the perpetrator intended to commit murder, which was the
only crime at issue in this case, and that petitioner both intended to aid and abet, and did
in fact aid and abet, in the commission of that crime. Furthermore, the jury made
additional findings establishing that petitioner acted with express malice.7 Taken
together, the jury’s findings establish that petitioner knowingly and intentionally aided or
encouraged the commission of murder with the intent to kill, and with knowledge that the
perpetrator also harbored murderous intent. (See People v. Morris, supra, 19 Cal.5th at
p. 691; In re Lopez, supra, 14 Cal.5th at p. 585.) Accordingly, the jury necessarily made
all the findings necessary to convict petitioner under a direct aiding and abetting theory.
7 It is undisputed that the jury instructions on both the gang special circumstance
and the conspiracy count required the jury to find that petitioner acted with intent to kill.
The intent-to-kill findings are binding on petitioner. (Curiel, supra, 15 Cal.5th at p. 453.)
Petitioner concedes the prior findings have preclusive effect.
14.
Contrary to petitioner’s assertions, there is no possibility the jury convicted him
under a natural and probable consequences theory or another theory of implied malice.
“First degree murder was the object of the conspiracy, not the natural and probable
consequence of an act committed to further the object of the conspiracy.” (People v.
Medrano (2021) 68 Cal.App.5th 177, 184.) The jury was not instructed on a natural and
probable consequences theory of murder or conspiracy to commit murder. No
instructions permitted the jury to find petitioner guilty of murder based on his having
intended to commit assault with a deadly weapon. Indeed, the instructions did not call
for the jury to determine whether petitioner committed, or intended to commit, assault
with a deadly weapon. Nor was the jury instructed on other crimes on which a murder
verdict might have rested. The instructions did not permit the jury to convict petitioner of
murder based merely on his participation in or conspiracy to commit some lesser,
uncharged target offense, or upon a finding that murder was a natural and probable
consequence of some other offense. (See People v. Lovejoy (2024) 101 Cal.App.5th 860,
868.)
Petitioner relies on Curiel for the proposition that the jury’s finding of intent to kill
on either the conspiracy count or the gang special circumstance is insufficient to establish
his ineligibility for resentencing as a matter of law because the finding was not tied to
“any conduct that directly encouraged or assisted in” the murder. However, Curiel is
readily distinguishable and therefore does not assist petitioner. There, the defendant was
convicted of first degree murder with a true finding on a gang-murder special-
circumstance allegation that established he intended to kill. (Curiel, supra, 15 Cal.5th at
p. 440.) The jury was instructed on direct aiding and abetting as well as a natural and
probable consequences theory of aiding and abetting, which required the jury to find only
that the defendant intended to commit the crimes of disturbing the peace or carrying a
concealed firearm. (Id. at pp. 445–446, 466, 468.) The instructions did not require the
jury to find the perpetrator intended to commit murder or a life-endangering act, or to
15.
find the defendant intended to aid the perpetrator in the commission of murder or a life-
endangering act. (Id. at p. 468.) Because the instructions permitted the jury to convict
the defendant of murder under a natural and probable consequences theory and did not
require the jury to make findings on all elements of a valid direct aiding and abetting
theory of murder, the intent to kill finding was insufficient to establish the petitioner’s
ineligibility for resentencing as a matter of law. (Ibid.) The court in Curiel noted that its
holding would apply to a “ ‘very small set of cases’ ” that involved the narrow scenario in
which a defendant may have been found liable for murder under the natural and probable
consequences doctrine, despite a finding that he or she acted with malice aforethought.
(Id. at p. 470.) The court expressly noted that its holding would not necessarily apply to
other cases in which the jury found intent to kill. Moreover, materially different jury
instructions might yield a different result. (Id. at p. 471.)
Here, the jury instructions were materially different from those given in Curiel.
The jury was not instructed on a natural and probable consequences theory of aiding and
abetting murder or conspiracy to commit murder, or that it could find petitioner guilty of
murder based on his intent to commit or participate in a different crime. The jury
instructions on direct aider and abettor liability and conspiracy to commit murder did not
rely on a natural and probable consequences theory or another theory of implied malice.
Curiel therefore does not aid petitioner.
Petitioner nonetheless argues the aiding and abetting instruction left open the
possibility the jury convicted him under a natural and probable consequences theory
because the instruction informed the jury that all principals in the commission of the
crime are “equally guilty” and that “[u]nder some specific circumstances, if the evidence
establishes aiding and abetting of one crime, a person may also be found guilty of other
crimes that occurred during the commission of the first crime.” Additionally, as stated,
the jury was instructed on the offense of assault with a deadly weapon. Petitioner reasons
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these instructions allowed the jury to find him guilty of murder based on a finding that he
aided and abetted assault with a firearm with the intent to kill.
We disagree. First, our Supreme Court has held that the “equally guilty” language
in this former instruction does not mislead a jury to determine a defendant’s criminal
liability based on the perpetrator’s mental state, rather than the defendant’s own mental
state, absent something in the record to suggest the jury misunderstood the instructions.
(People v. Johnson (2016) 62 Cal.4th 600, 638–641.) Second, the instruction’s oblique
reference to other crimes that occur during the commission of the intended crime is not
susceptible to the reading petitioner suggests, considering the instructions as a whole. As
stated, the instruction explained that a defendant who aided and abetted one crime could
be guilty of a second crime only in “some specific circumstances.” However, the only
offenses charged in this case were murder and conspiracy to commit murder and the jury
was not instructed on lesser included offenses. There was no other intended crime to
which the instruction might apply and the circumstances in which the instruction might
apply were not explained. Meanwhile, the instructions on murder, conspiracy to commit
murder, and aiding and abetting did not provide the jury a path to apply this instruction
but rather permitted the jury to convict only under a valid direct aiding and abetting
theory. Finally, the instruction on assault with a deadly weapon appears to have related
to the gang predicates and pattern of criminal gang activity and generally asked the jury
to evaluate the conduct of an unspecified “person,” rather than specifically petitioner.
Additionally, the jury was instructed to “[p]ay careful attention to all of the[] instructions
and consider them together.” We presume the jury understood and followed the court’s
instructions. (People v. Silveria and Travis (2020) 10 Cal.5th 195, 245.) The
instructions did not permit the jury to convict petitioner under a natural and probable
consequences theory.
Finally, relying on Reyes, supra, 14 Cal.5th 981, petitioner contends the record
does not establish his ineligibility for resentencing because it does not establish the jury
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found he aided and abetted the murder by aiding and abetting “the life-endangering act.”
This argument is without merit. Reyes clarified the elements of aiding and abetting
implied malice murder. Unlike express malice murder, “[m]urder is committed with
implied malice when ‘the killing is proximately caused by “ ‘an act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.’ ” ’ ” (Reyes, at p. 988.) “In the context of implied malice,
the actus reus required of the perpetrator is the commission of a life-endangering act. For
the direct aider and abettor, the actus reus includes whatever acts constitute aiding the
commission of the life-endangering act. Thus, to be liable for an implied malice murder,
the direct aider and abettor must, by words or conduct, aid the commission of the life-
endangering act, not the result of that act. The mens rea, which must be personally
harbored by the direct aider and abettor, is knowledge that the perpetrator intended to
commit the act, intent to aid the perpetrator in the commission of the act, knowledge that
the act is dangerous to human life, and acting in conscious disregard for human life.’ ”
(Id. at p. 991.) In short, proof of the aider and abettor’s knowledge and intent with regard
to the direct perpetrator’s life-endangering act is required to establish the aider and
abettor acted with the disregard for human life required to establish implied malice.
Petitioner acknowledges that Reyes addressed the elements of implied malice
murder. Nonetheless, he contends “the same requirement [to aid in the commission of
the life-endangering act] applies for direct aiding and abetting murder with express
malice.” He asserts, “Reyes seems to have disapproved of the broader focus in … older
cases on any words or conduct … that indirectly assisted the perpetrator.” He attempts to
characterize his conduct, i.e., driving the shooter to the location of the homicide, as mere
companionship with the killer that does not establish he directly aided and abetted the
life-endangering act with express malice.
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We disagree that Reyes purported to alter the elements of express malice murder
for an aider and abettor in the way petitioner suggests. “[C]ases are not authority for
propositions not considered.” (People v. Casper (2004) 33 Cal.4th 38, 43.) It is well-
settled that direct aiding and abetting of first degree murder requires that the aider and
abettor form “ ‘his [or her] own culpable intent’ ” (In re Lopez, supra, 14 Cal.5th at
pp. 579, 585), know “ ‘the full extent of the perpetrator’s criminal purpose’ ” (id. at
p. 585), and aid or encourage the commission of the murder “ ‘with the intent or purpose
of committing, encouraging, or facilitating its commission’ ” (id. at pp. 579, 585). The
jury was instructed that, to find defendant guilty of murder as an aider and abettor, it was
required to find that he aided and abetted the commission of murder by facilitating,
promoting, encouraging, or instigating the perpetrator’s commission of that crime with
the requisite knowledge and intent. The jury necessarily found petitioner’s conduct was
not merely incidental to the murder, but facilitated, promoted, encouraged, or instigated
it.
In sum, the record establishes petitioner is ineligible for resentencing as a matter
of law and the petition was properly denied.
DISPOSITION
The order is affirmed.
DETJEN, J.
WE CONCUR:
HILL, P. J.
MEEHAN, J.
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