Filed 6/17/26 P. v. Perez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089082
Plaintiff and Respondent,
(Super. Ct. No. SC074665A)
v.
JORGE GARCIA PEREZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. J. Eric
Bradshaw, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, and Jorge Garcia
Perez, in propria persona, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Peña, J. and Snauffer, J.
INTRODUCTION
On May 24, 1998, Derrick Luque (Derrick) was fatally shot.
Appellant/defendant/petitioner Jorge Garcia Perez (petitioner) was convicted after a jury
trial of second degree murder as an aider and abettor and sentenced to 15 years to life
plus one year.
In 2023, petitioner filed a petition for resentencing of his murder conviction
pursuant to Penal Code1 section 1172.6. The trial court found a prima facie case and
issued an order to show cause (OSC).
In 2024, the trial court conducted the section 1172.6 evidentiary hearing and filed
a lengthy order that denied his petition. The court found beyond a reasonable doubt that
petitioner was still guilty of murder after the amendments to sections 188 and 189, as a
direct aider and abettor who acted with malice and the intent to kill. The court also found
he was a major participant who acted with reckless indifference to life.
On appeal, appellate counsel filed a brief which summarized the facts and
procedural history with citations to the record, raised no issues, and asked this court to
independently review the record pursuant to both People v. Delgadillo (2022) 14
Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436.
Petitioner filed a supplemental letter brief and raised several issues. We review
the trial court’s findings and petitioner’s contentions and affirm the court’s order.
FACTS
At the evidentiary hearing on petitioner’s section 1172.6 petition, the trial court
considered nearly 1,000 pages of documents introduced by the prosecution, consisting of
the reporter’s transcripts from his preliminary hearing and jury trial, the jury instructions,
the verdict forms, and records from petitioner’s parole hearings and “Comprehensive
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
Risk Assessments” (CRAs). Petitioner objected to the court’s consideration of his parole
records, and did not object to the other documents.
In denying the section 1172.6 petition, the trial court stated it reviewed the entirety
of the documentary evidence and explained that “unless a document is referenced [in its
order], the Court did not consider such a document in the rendering of this decision.”
On appeal, petitioner’s supplemental letter brief raises certain issues about the trial
court’s factual and legal findings in denying his petition. The following facts are
therefore quoted entirely from the court’s factual statement in its order denying his
petition, since that statement was based on the evidence that it relied on when it denied
appellant’s petition.
Preliminary Hearing Evidence2
The following evidence was introduced at petitioner’s preliminary hearing without
objection, and considered by the trial court at the section 1172.6 evidentiary hearing.
The Shooting
T.S., Derrick’s girlfriend, testified she “was familiar with Petitioner and knew him
by the name of Cricket,” and recounted what she saw on the day of the incident, and that
it started when Derrick and T.S. were at a park with their baby.
T.S. testified, “Petitioner approached [Derrick] and told him he needed to get out
of the park because it belonged to Rexland Park. Petitioner said ‘fuck Colonia, it’s
Rexland Park, you need to take your pussy ass home out of our park, this belongs to
Rexland Park, fuck Colonia’. Petitioner called [Derrick] ‘puto’, which is a derogatory
term. According to [T.S.], [Derrick] responded with ‘You’re the puto. If you’re such a
big man move me out of the park’. [Derrick] might have also said ‘fuck the Rexland
2 The prosecution introduced the preliminary hearing transcript for the trial court’s
consideration at the evidentiary hearing, and petitioner did not object. In its ruling that
denied the petition, the court stated that it was considering the preliminary hearing
transcript pursuant to People v. Davenport (2023) 95 Cal.App.5th 1150, 1158.
3.
Park’. [Derrick] told Petitioner to come fight one on one with him. [T.S.] also yelled at
Petitioner to come back and face [Derrick] ‘like a man’. Petitioner rode away on his bike
while still yelling ‘fuck Colonia’ and calling [Derrick] ‘puto’. [Derrick] alone followed
Petitioner for a short time but never left the park.”
T.S. testified she left the park with Derrick and their baby, “[t]hey stopped at the
store and then went to [T.S.]’s mother’s house for approximately 30 to 45 minutes.
[Derrick], [T.S.], and their baby then began to walk to their own house at around
7:15 p.m. As they were walking on the street someone yelled ‘Green Eyes’. [T.S.] was
aware that [Derrick] had been in the Colonia gang in the past and was known as ‘Green
Eyes’. [Derrick] and [T.S.] stopped and turned to see who was calling. They thought it
was someone they knew or one of [Derrick]’s friends. [Derrick] walked towards where
the voice was heard.”
T.S. testified petitioner “then stepped out from behind the limbs of a tree and said,
‘Now what’s up, fool?’ while putting his hands in the air. [T.S.] could see two other
people near Petitioner but they were still obstructed by the limbs of the tree. [Derrick]
responded ‘I don’t need no problems, my lady and my kid is right here.’ [Derrick] had
put his hands in the air with his palms up then lowered his left hand slightly and pointed
towards [T.S.] and their baby who were a few feet behind [Derrick]. The two other
people then stepped out from behind the tree where Petitioner had come from. One stood
behind Petitioner. The other person stood shoulder to shoulder beside Petitioner, pulled a
gun out, and said, ‘This is what’s up now, fool’ and then fired two shots. There was a
brief pause and then two more shots were fired.”
T.S. testified, “[o]ne of the latter two shots hit [Derrick] and he fell face down.
[T.S.] thought Petitioner was acting excited, but not surprised, that the shooting was
taking place. Petitioner did nothing to stop the shooting. As she ran towards [Derrick]
and turned over his body, [T.S.] saw all three people run away together.”
4.
Accomplice Testimony
Raul Guijarro testified at the preliminary hearing “under an immunity agreement.
He was present at the time of the Incident. He knew Petitioner and the Shooter [later
identified as Jesus Gutierrez]. He had been walking with Petitioner and the Shooter for
only a block or two before the Incident occurred. Mr. Guijarro admitted to being a fellow
Rexland Park gang member with Petitioner and the Shooter and that he had just recently
‘jumped in’ the gang. Mr. Guijarro thought [Derrick] was from the Colonia gang.”3
“Mr. Guijarro [testified he] saw Petitioner and the Shooter throw a bunch of gang
signs back and forth with [Derrick] and they were ‘disrespecting’ each other.
Mr. Guijarro saw and heard Petitioner cussing back and forth with [Derrick]. Petitioner
was standing next to the Shooter just prior to and while the shots were being fired.
Mr. Guijarro was behind them. He heard four shots. Mr. Guijarro did not see anyone
else with a gun. Mr. Guijarro, Petitioner, and the Shooter all ran off in the same
direction.”
Petitioner’s Admission
Sergeant Rosemary Wahl of the Kern County Sheriff’s Department testified that
“[o]n the day of the Incident, as she was handcuffing Petitioner, and before Petitioner had
been provided any Miranda[4] rights warnings, Petitioner spontaneously said, ‘Why do
you have to be so mean to me; we were only waging war.’ ”
The Charges
Petitioner was charged with conspiracy to commit murder (§ 182, subd. (a)(1)),
first degree murder of Derrick (§ 187, subd. (a)), and assault with a firearm of T.S.
(§ 245, subd. (a)(2)), with firearm enhancements (§ 12022, subd. (a)(1)).
3 At trial, there was evidence that T.S. reviewed a photographic lineup and
identified Gutierrez as the shooter.
4 Miranda v. Arizona (1966) 384 U.S. 436.
5.
Trial Evidence5
On September 30, 1998, petitioner’s jury trial began. He was tried by himself and
there were no codefendants. The following evidence was introduced at petitioner’s trial
and considered by the trial court at the section 1172.6 evidentiary hearing, without
objection by petitioner.
The Shooting
“[T.S.’s trial] testimony was similar to that which she gave in the preliminary
hearing. She gave a full description of the tattoos on the body of [Derrick] including
several depicting affiliation with the Colonia gang, which she believed [Derrick] had
been a member of at one time. Her recounting of the Incident was the same.”
“[T.S.] also testified about being interviewed while she was at the hospital shortly
after the Incident and identifying Petitioner as being involved in the crime. She identified
Petitioner, Mr. Guijarro, and the Shooter [Gutierrez] in photo line ups.”
Raul Guijarro refused to testify at the trial, “he was deemed to be an unavailable
witness and Mr. Guijarro’s preliminary hearing testimony … was admitted into evidence.
The testimony was read to the jury.”
Petitioner’s Arrest and Statements
C.C. “apparently drove on the street where the Incident occurred shortly after the
shots were fired. She saw three young men running away from where [Derrick] laid [sic]
in the street with a woman hovering over him yelling ‘they just shot my boyfriend’.
[C.C.] drove after two of the young men whom she suspected of being involved in the
shooting. She did not see where the third young man ran. She saw one of the two young
men she had followed run into a house and the other ran into a house three or four houses
5 In its ruling that denied the petition, the trial court stated petitioner did not object
to the introduction of the trial transcript at the evidentiary hearing. (See, e.g., People v.
Cody (2023) 92 Cal.App.5th 87, 103 [transcript of testimony from the petitioner’s trial
that led to original conviction admissible at § 1172.6 evidentiary hearing]; People v.
Dixon (2026) 118 Cal.App.5th 116, 121–122.)
6.
further down the street. A short time later [C.C.] showed the investigating officers the
houses where she saw the young men enter.”
Deputy Eric Larson “was on patrol the evening of the Incident and was called to
the scene. He went to the houses where [C.C.] had told other officers that the young men
who ran from the scene [had] gone into. As Deputy Larson arrived in the area, a young
man left one of the identified houses, saw the patrol car and then ran across the street.
Deputy Larson identified that young man as Petitioner. After getting out of the patrol car
and chasing Petitioner, Deputy Larson saw Petitioner throw a small firearm on the lawn.
Deputy Larson picked up the firearm and later booked the firearm, plus the three shell
casings that were inside the cylinder of the firearm, into evidence.”
Deputy Larson testified that “[a]fter Petitioner ran and jumped some fences[,] [he]
lost sight of him. However, after a yard-to-yard search, Petitioner was found in a nearby
garage. Petitioner was taken into custody and handed over to Sergeant Wahl while
Deputy Larson and others cleared the garage of possible other suspects. No other persons
were found in that garage. Mr. Guijarro was located in a nearby house and he was also
taken into custody.”
“As she had testified at the preliminary hearing, Sergeant Wahl recounted [at trial]
Petitioner’s spontaneous statement made in her presence: ‘Why do you have to be so
mean to me; we were only waging war.’ ”
Identification of the Three Suspects and Petitioner’s Postarrest Statements
Sergeant Christopherson testified about “[t]he identification of Petitioner,
Mr. Guijarro and the Shooter [Gutierrez] by [T.S.] .… He collected a gun holster from
the house of the Shooter, which was later identified as being able to hold the type of
firearm used in the shooting. [He] testified that the Shooter was not located on the night
of the Incident but both Mr. Guijarro and Petitioner were apprehended.”
“Sergeant [Christopherson] testified regarding his interview of Petitioner taken on
the evening of the Incident. Petitioner spoke English in the interview and did not seem to
7.
have any issue with understanding the questions posed in English. The interview was
played for the jury, and the jury was also provided a transcript. In the interview,
Petitioner denied knowing [Derrick] or anything about the shooting. He also denied
being in a gang.”
The Investigation
Deputy Jerry Klarcyk and evidence technician Jeff Slayton testified about the
collection of evidence and photography of the shooting scene.
Gregory Laskowski, a criminalist with the Kern County Laboratory, testified “a
holster collected as evidence could have held the firearm that was also in evidence in this
case. He also testified that the bullets and casings collected as evidence had been fired
from the firearm which had been collected by Deputy Larson.”
Another evidence technician “took photographs at the autopsy of [Derrick]. He
also collected the expended bullet from [Derrick]’s body.” Dr. Donna Brown “was the
forensic pathologist who conducted the autopsy of [Derrick] and testified that [Derrick]
died from a gunshot wound.”
Deputy Marty Willis, a gang investigator with the Kern County Sheriff’s
Department, testified about “gang culture, the means by which the gang identify
themselves, and how the various gangs ‘disrespect’ each other, including the defacing of
graffiti. He explained that once disrespected a gang member would normally seek to
regain respect through a retaliatory act. When doing so fellow gang members would join
so as to provide witness to the events of the retaliation.”
“Deputy Willis admitted that Petitioner had not been identified prior to the
Incident as being involved in any actual criminal street gang conduct. However,
Petitioner had been previously … identified as being affiliated with a gang. Petitioner’s
tattoos affirmed his association with the Rexland Park gang. Mr. Guijarro and the
Shooter [Gutierrez] were also identified as members of the Rexland Park gang. [Derrick]
was identified as a Colonia gang member.”
8.
Petitioner’s Trial Testimony
Petitioner testified at his trial and “claimed he was simply walking down the street
later that day and joined Mr. Guijarro and the Shooter [Gutierrez]. He was unaware that
either of them had a gun. When the Shooter pulled out the gun, Petitioner claimed he
told him not to do it. Petitioner also denied saying anything about ‘waging a war.’ ”
“Petitioner admitted to knowing [Derrick] and [T.S.] prior to the Incident. He
knew [Derrick] for about five months prior to the Incident. Petitioner claimed that when
he had talked to [T.S.] a few weeks before the Incident, she had angrily asked him why
he crossed out her name in the bathrooms at the park and she threatened him. Petitioner
said he knew nothing about it. Petitioner stated he did know that putting a name on the
bathroom wall in the park was a means to demonstrate your alliance with a gang.”
“The day of the Incident, Petitioner claimed [Derrick] threatened Petitioner and
chased after him. Petitioner denied ever saying anything to [Derrick] or throwing any
gang signs while at the park. He only asked why [Derrick] was yelling at him. Petitioner
left the park and later met with Mr. Guijarro and the Shooter walking down the street. He
had known both of these men for some time but had not seen either of them for about
four weeks. Petitioner did not hear any talk about killing or shooting anyone and saw no
firearms.”
“Petitioner claimed it was the Shooter, and not him, who yelled ‘Green Eyes’ after
they saw [Derrick] and his family walking away from them. The Shooter and [Derrick]
yelled at each other and threw gang signs. [T.S.] also yelled cuss words at Petitioner and
the Shooter. When [Derrick] started to walk towards them, the Shooter pulled out a gun
and started to shoot.”
“Petitioner claimed he did not know there was a gun and had no idea the Shooter
was going to fire the gun. After the first shots, Petitioner started to walk towards the
Shooter with the intent to tell him not to do that but he never actually said anything to the
Shooter. Then [Derrick] fell to the ground and Mr. Guijarro and the Shooter started to
9.
run so Petitioner ran too. He ran because he was afraid the Shooter would do something
to him also. However he admitted to running towards where the Shooter had gone. He
also admitted that he ran when a parole car come [sic] around the corner. Petitioner then
ran into a garage. He denied dropping a gun on a lawn.”
“Petitioner claimed he left the Rexland Park gang about a year prior but he was
still friends with Mr. Guijarro and the Shooter, who were still members of the
Rexland Park gang.”
Trial Stipulations
“A number of stipulations were entered during the trial regarding a number of
uncontroverted facts. During the trial the jury was informed that the parties stipulated
that the Shooter was 15 years old at the time of the Incident and had previously spray
painted a house which was related to a gang, and the Shooter hit someone in the nose
breaking it.”
Jury Instructions
“The jury was instructed that there was evidence presented which indicated that a
person other than Petitioner was or may have been involved in the Incident
(CALJIC 2.11.5); that motive was not an element of any crime and did not need to be
shown but the presence of motive could tend to establish guilt (CALJIC 2.51); that flight
after commission of a crime is not sufficient to establish guilt but is fact which may be
considered (CALJIC 2.52); that the jurors are the exclusive judges as to whether an
admission had been made (CALJIC 2.71); and that an admission alone is not sufficient,
and there must be proof of each element of the crime independent of any admission
(CALJIC 2.72).”
“Principals in a crime were defined (CALJIC 3.00); the definition of aiding and
abetting was provided (CALJIC 3.01); and the jury was instructed on the ways an
accomplice can be held responsible (CALJIC 3.10), and that merely assenting to or
aiding or assisting in the commission of a crime without knowledge of the unlawful
10.
purpose of the perpetrator and without the intent or purpose of committing, encouraging
or facilitating the commission of the crime is not criminal (CALJIC 3.14). The jury was
also instructed on conspiracy (CALJIC 8.69), murder (CALJIC 8.10) and malice
(CALJIC 8.11). The degrees of murder and specific intent were explained
(CALJIC 8.30, 8.31, 3.31).”
Verdict and Sentence
On October 13, 1998, the jury found petitioner not guilty of conspiracy to commit
murder; not guilty of first degree murder but guilty of second degree murder as the lesser
included offense; and guilty of assault with a firearm, with firearm enhancements found
true as to both convictions.
On November 10, 1998, petitioner was sentenced to 15 years to life for murder
plus one year for the firearm enhancement.
Direct Appeal
On March 21, 2000, this court filed the nonpublished opinion that affirmed the
judgment. (People v. Perez (Mar. 21, 2000, F032108) [nonpub. opn.].)
PETITIONER’S STATEMENTS IN PAROLE PROCEEDINGS
In denying petitioner’s section 1172.6 petition, the trial court’s ruling summarized
petitioner’s statements from three CRAs and parole hearings, and relied on this evidence
when it denied his petition.6
6 As discussed below, the trial court overruled petitioner’s objections to the court’s
consideration of the CRAs and the parole hearing transcripts. “The only portions of the
[CRAs] considered by the Court are the recounting of statements made by Petitioner
which are against his interest and relevant in that Petitioner discussed his motivations,
actions, and mental state in connection with the Incident.” The court stated that
“[a]lthough the 2017 and 2022 [CRAs] are part of the evidence introduced in this
[section] 1172.6 [p]etition proceeding, this Court did not rely on these documents. The
Court found … Petitioner’s testimony at the Board of Parole hearings, and the evidence
at trial regarding the Petitioner’s state of mind at the time of the Incident much more
reliable and compelling.”
11.
2017 CRA
“After being instructed that he had the right to refuse to participate in the CRA, the
right to submit a rebuttal regarding incorrect facts, and the non-confidential nature of the
CRA, Petitioner agreed to proceed with the CRA interview” in 2017.
“At this 2017 CRA Petitioner described the Incident as follows:
“In the morning I had an argument with [Derrick] and the people he
was with who were rival gang members. I walked away. Then I went to
my friend Raul [Guijarro] first and then he was walking and we went to
[Gutierrez’s] house. I told him about the incident with [Derrick]. Then we
came out of the house where we was at [sic]. Then we went out to look for
[Derrick]. He was walking with his family when we confront[ed] him. He
argued with us, throwing gang signs and we were calling each other names.
That is when [Gutierrez] shoot [sic] him.”
“In 2017 Petitioner stated the murder was motivated by gang-related conflict.
Although Petitioner wanted [Derrick] dead, he contended that he did not tell his fellow
gang member to shoot [Derrick]. Petitioner thought the other gang member shot
[Derrick] because he wanted to make a name for himself. Petitioner stated he did feel he
could have prevented the murder.”
2022 CRA
“The People also introduced the CRA conducted in 2022. Again after receiving
admonishments that his participation was not confidential and voluntary, Petitioner
agreed to be interviewed.”
“Petitioner acknowledged that he joined a gang when he was 16 years old and
engaged in gang-related violence and robberies to support the gang. Petitioner admitted
to becoming a member of the Rexland Park gang when he was 16 years of age because he
was looking for acceptance.”
“With his fellow gang members, Petitioner used drugs, alcohol, and firearms and
was involved in gang conflicts. He admitted to being present on the scene when his
fellow gang members committed some robberies.”
12.
“Petitioner recounted the Incident in the 2022 CRA as follows:
“It was May 24, 1998, I was drinking in the park with a group of
friends, so when I decided to go to my house I found [Derrick] and his
family. I decided to go back to my house and they were in the other part of
the park. I decided to confront this person because I knew he was a rival
member of gang … although [he] didn’t do anything to me. [I] wanted to
confront this person; knew he was [a] rival member of my gang; wanted to
show [my] gang [I] was a good member. So I went back to [my] friends
and told them [a] rival member was there. He didn’t want to leave, so [I]
convinced [my] friends to go there and look for him. [I] knew one of my
friends had a gun. [We went] looking for him in the park, [and] found
[him] when [he was] heading to his house. When [we] found him [I] told
him he was not accepted in [the] neighborhood [and] wanted him to be far
away from [the] neighborhood and [that I was] representing our gang.
That’s when one of my friends took the gun and shot him. For me, very
clear, type of crime, because of [the] life we had at that moment. We could
have avoided the death of this person. Even if [I was] not [the] person who
shot this guy, I felt totally responsible for what happened. I was the person
who manipulated the other friends to commit the crime. When you saw
him, what were you thinking and feeling? It was [a] mix [of] feelings—
confused; scared; a lot of feelings. I was feeling sad and scared. When [I]
encountered [him] in [the] park, [I was] feeling ok, good, thought good for
my friends or gang … thought [I was] doing the right thing. Did you plan
to find him or run into him later? Didn’t plan it. When you left the park,
did you go looking for the victim or run into him? I was riding a bike going
to [the] house of my friend and found other fellows. [When we] leave [sic]
the park, we found him and his family, confronted [them], left [the] place
and look[ed] for my bike. When looking for [the] bike, [I] found one friend
and told him what happened. Me and [my] friend went to [the] house of
[an] ex-fellow and asked him if he had a gun. Why did you ask him if he
had a gun? The other friends I told you [I] found first told me we have to
go to follow to explain [the] rival member in [the] park; planned to go look
for him … correct. [He was] walking with [his] wife and child. Did you
say anything to each other? Had words; made signs of gangs;
representation of gang … [we] didn’t want him to be [in the] neighborhood.
Why was the victim shot? The victim [was] considered [an] enemy because
once [he] crossed [out] some names of [a] gang member on [the] bathroom
wall. [There was an e]xchange of words and signs with hands representing
the gang, then, [my] friend took out [the] gun and shot him.”
13.
“In the 2022 CRA, Petitioner stated that the fact that he was a member of a gang
was a contributing factor in the commission of the Incident. [Derrick] was a member of a
rival gang. [¶] Petitioner’s anger, hate and consumption of alcohol that day were also
factors. Petitioner stated he considered himself responsible because he was able to avoid
the Incident but did not do so.”
Board of Parole Hearings
“Petitioner has participated in three parole hearings: conducted on June 26, 2012,
May 10, 2017, and April 26, 2022.”
June 26, 2012 Hearing
“In the 2012 parole hearing, Petitioner admitted to scratching out [Derrick]’s name
on the park’s bathroom wall and writing his own name down. Petitioner claimed it was
[Derrick] who initially confronted him and told Petitioner to stay out of the park.
Petitioner had not told his friends about the confrontation when they saw [Derrick] later
that day. When the teens met up with [Derrick] walking on the street, Petitioner again
claimed it was [Derrick] who initiated a confrontation and ‘started saying things’.
Petitioner claimed he and his friends just yelled back at [Derrick]. However later in the
hearing Petitioner said he and his friends were the ones who started throwing signs and
yelling at [Derrick].”
“Petitioner denied knowing his friend had a firearm at the time of the Incident.
Petitioner said he did not know of these friends having guns and threatening people in the
past. However, Petitioner knew guns were often present in gangs. He also admitted that
when he was hanging out with his other friends on prior occasions he knew they carried
guns for the protection of the gang.”
“Petitioner was regretful that he did not stop his friend from firing at [Derrick].
[¶] Petitioner admitted the Shooter gave him the gun after [Derrick] was shot and he ran
with it. When the officer chased after Petitioner, he threw the gun on a lawn. Petitioner
said he was arrested about 20 minutes after he threw the gun on the lawn.”
14.
“Petitioner admitted to now realizing the death of [Derrick] was related to a
problem between rival gangs. Petitioner was clear that the confrontations with [Derrick]
were all about the fact he and [Derrick] were from rival gangs.”
“Petitioner admitted to disrespecting [Derrick] by scratching out his name on the
park bathroom wall and putting ‘puta’. He also admitted to making the statement to the
officer that they were ‘waging war’ and lying about that at trial.”
May 10, 2017 Hearing
“The People included the transcript of the May 10, 2017 parole hearing in the
supporting documents admitted into evidence in this proceeding.”
“In 2017, Petitioner admitted to joining the Rexland Park gang when he was
16 years old and engaging in fights with rival gangs and committing robberies to meet the
needs of the gang.”
“The day of the Incident, Petitioner stated that he began drinking with his friends
at the park. He left on his bike to go home and came across [Derrick], [T.S.] and their
[two-year-old] son. Petitioner decided to confront them because he knew [Derrick] was
from a rival gang.”
“Petitioner admitted to disrespecting [Derrick] in front of his family by telling him
to leave the neighborhood. Petitioner felt disrespected by [Derrick], which angered
Petitioner, and he admitted to going to look for a weapon to confront [Derrick] again.”
“Petitioner went to his friend’s house because he believed that friend had the gang
weapon that was used to take care of the neighborhood. However, the weapon was not
there so the two of them went to another house where it was believed the weapon was
located. Petitioner admitted to manipulating his two friends into going with him to find
[Derrick], whom Petitioner believed disrespected their gang. Petitioner was out to get
vengeance and he hunted for [Derrick] at the park and in the neighborhood.”
“When Petitioner and his friends found [Derrick], Petitioner began arguing with
[Derrick]. Petitioner knew the Shooter [Gutierrez] had the gun. It was Petitioner’s
15.
intention to take the life of [Derrick] and see him dead. Petitioner admitted to ambushing
[Derrick]. After the shooting, Petitioner was handed the firearm and he ran to avoid
taking responsibility for the crime. He hid in a house not knowing whose house it was.”
“Petitioner admitted tell[ing] the officer that they were just ‘waging war’ meaning
it was just a conflict between two gangs.”
“Petitioner admitted to giving the 2012 Board of Parole panel a false impression
and lying about the crime.”
April 26, 2022 Board of Parole Hearing
“In the last parole hearing, conducted in 2022, Petitioner admitted to still being
involved in a gang. In this hearing there was no substantive discussion regarding the
Incident.”
SECTION 1172.6 PETITION FOR RESENTENCING
On August 30, 2023, petitioner filed a petition for resentencing of his murder
conviction pursuant to section 1172.6, as enacted by Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) and Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate
Bill 775.)
Petitioner filed a supporting declaration that consisted of a preprinted form where
he checked boxes that asserted he was eligible for resentencing because he was convicted
at trial of first or second degree murder pursuant to the felony-murder rule or the natural
and probable consequences doctrine; he was not the actual killer; he did not, with the
intent to kill, aid, abet, counsel, or assist the actual killer in the commission of first degree
murder; he was convicted of second degree murder under the natural and probable
consequences doctrine or the felony-murder rule; and he could not be convicted of
murder after the amendments to section 188, effective on January 1, 2019.
The trial court granted petitioner’s motion for appointment of counsel.
16.
THE TRIAL COURT’S PRIMA FACIE FINDING
On April 12, 2024, the trial court convened the hearing on whether petitioner
stated a prima facie case for resentencing.
The prosecutor stated she was very familiar with petitioner’s murder conviction
because she handled his jury trial. The prosecutor stipulated there was a prima facie case
for relief under section 1172.6 because petitioner was not the actual killer, and the case
was argued in part on the natural and probable consequences doctrine. Defense counsel
concurred.
The trial court found the petition stated a prima facie case for relief, issued an
OSC, and set a schedule for briefing and the evidentiary hearing.
The Evidentiary Hearing Briefs
Prior to the evidentiary hearing, the prosecutor moved for the trial court to take
judicial notice and consider the reporter’s transcripts from petitioner’s preliminary
hearing and jury trial, the jury instructions given and not given, and the CRAs and
transcripts from appellant’s parole hearings.
The prosecutor argued the evidence showed beyond a reasonable doubt that
petitioner was guilty of murder after the amendments to sections 188 and 189, because he
acted as a direct aider and abettor who had the intent to kill the victim, and he also was a
major participant who acted with reckless indifference to life.
Defense counsel’s hearing brief argued petitioner’s statements in the CRAs and at
the parole hearings were unreliable and not credible. Counsel further argued there was
insufficient evidence beyond a reasonable doubt that he was an aider and abettor who
acted with the intent to kill, or that he was a major participant who acted with reckless
indifference to human life.
THE EVIDENTIARY HEARING
On November 20, 2024, the trial court convened the evidentiary hearing on
petitioner’s section 1172.6 petition. The court acknowledged receipt of the parties’
17.
pleadings, and the prosecution’s documentary evidence that consisted of the reporter’s
transcripts from the preliminary hearing and jury trial, the jury instructions given and not
given, the verdict forms, and the CRAs and parole hearing transcripts from 2012, 2017,
and 2022.
Defense counsel asked the trial court to take judicial notice of an article about the
motivation of inmates when they make statements in parole proceedings, and argued the
information was relevant in order to assess petitioner’s inconsistent statements at his
parole hearings compared to his trial testimony. Counsel also objected to the court’s
consideration of the CRAs because the documents consisted of inadmissible hearsay.
The prosecutor objected to petitioner’s judicial notice request, but agreed that most
of the material in the CRAs was inadmissible except for petitioner’s own statements.
The trial court denied petitioner’s request for judicial notice of the article. As for
the parole transcripts and CRAs, the court stated it would only consider petitioner’s
statements in those records for purposes of the evidentiary hearing.
The trial court invited opening statements for purposes of the evidentiary hearing.
The prosecutor stated the evidence from the trial and petitioner’s statements at the parole
hearings would show beyond a reasonable doubt that he was guilty of murder as a direct
aider and abettor with the intent to kill, and he was also a major participant who acted
with reckless indifference to life.
Defense counsel argued the evidence showed petitioner was 17 years old at the
time of the incident, he was not the actual killer, he was not armed, and an unarmed
juvenile would not have been able to stop the armed shooter, Gutierrez. Petitioner
displayed impulsivity and bad judgment when he ran away instead of helping the victim,
but his conduct did not rise to intent to kill or being a major participant who acted with
reckless indifference.
Defense counsel argued the trial court should view petitioner’s inculpatory
statements at the parole hearings with “suspicion” because petitioner only said “whatever
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he thinks the powers that be want to hear, so he can get released on parole.” Petitioner’s
purported admissions were not credible and contradicted by the trial evidence. The only
question was the actual knowledge and intent of Gutierrez, the shooter, and why he shot
the victim. Petitioner associated with the wrong people and did not show any intent to
kill the victim.
The trial court took the matter under submission to review the extensive
documentary evidence, and stated it would address the defense motions to strike in its
ruling.
THE COURT’S DENIAL OF THE PETITION
On December 18, 2024, the trial court convened a hearing and stated it was
denying petitioner’s petition. The court partially stated its decision at the hearing, and
also filed its full order.
The Trial Court’s Order
As set forth above, the trial court’s order recited the facts of the murder based on
the documentary evidence introduced at the evidentiary hearing, and clarified that it only
relied on the facts that were stated in its order.
The trial court stated that it only considered petitioner’s own statements in the
CRAs and his sworn testimony at the parole hearings. The court overruled petitioner’s
objections that his admissions at the parole hearings were unreliable, and found the
inconsistencies between his trial testimony and statements at the parole hearings “perhaps
affects the weight the Court gives to Petitioner’s various statements but the Court will not
ignore the statements of Petitioner in the various proceedings as Petitioner proposes.”
The trial court’s order set forth the provisions of section 1172.6 that enacted the
statutory amendments to sections 188 and 189, and the changes to the felony-murder rule
and the natural and probable consequences doctrine. The court reviewed the provisions
of section 1172.6, subdivision (d)(3) about the admissibility of evidence at the
evidentiary hearing, that the court acted as the finder of fact and credibility from that
19.
evidence, and the prosecution had the burden to prove beyond a reasonable doubt that
petitioner was guilty of murder after the amendments to sections 188 and 189.
As to petitioner’s murder conviction, the trial court stated the prosecution may
have “depended upon the felony[-]murder rule or the natural and probable consequences
doctrine as they existed prior to the amendments effective in 2019. Therefore, in order to
still hold Petitioner accountable for the murder of [Derrick], this Court must make a
finding, beyond a reasonable doubt, that Petitioner, as an aider and abettor, either acted
with his own intent to kill or was a major participant in an underlying crime who acted
with reckless indifference to human life.”
The trial court then reviewed the legal principals of murder, express and implied
malice, direct aiding and abetting, and the definitions in People v. Banks (2015) 61
Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, as to whether a person is a major
participant who acted with reckless indifference.
As to petitioner’s arguments about his age at the time of the homicide, the trial
court acknowledged that a person’s youth is relevant to the determination of intent to kill
or whether he was a major participant and who acted with reckless indifference under
section 1172.6. The court found petitioner was 17 years four months old at the time of
the homicide, and stated “[h]is youth has been considered by this Court in reaching the
determination as to whether [he] acted with intent [to kill] or was a major participant who
acted with reckless indifference to human life.”
The Trial Court’s Factual and Legal Findings
The trial court found petitioner, “beyond a reasonable doubt, did not personally
shoot [Derrick],” but he was still guilty of murder after the amendments to sections 188
and 189 because he was a direct aider and abettor who acted with the intent to kill, and
also a major participant who acted with reckless indifference to human life.
We quote the trial court’s factual and legal findings in their entirety.
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“Petitioner was an Aider and Abettor to the Murder[]
“Petitioner’s own actus reus supports the finding he was a direct
aider and abettor. His actions were not merely dangerous to life in some
vague or speculative sense.… Petitioner’s actions in the present case
created, instigated and directly caused the dangerous and fatal situation.
“Petitioner rode his bike away from the park after having a verbal
confrontation with [Derrick] with [the] intention[] of returning to remedy
what he perceived to be a wrong. Petitioner’s purpose was to find a firearm
and return with help in order to effectuate that vindication. He went to
one location in search of the firearm and did not find it. He went elsewhere
and did find the firearm. He convinced two other individuals to go with
him too [sic] avenge the disrespect he had been shown, and he and his
accomplices hunted [Derrick]. From a concealed position, [Petitioner] and
the others saw [Derrick] with his family, called to him to get [Derrick]’s
attention, and as [Derrick] came closer, Petitioner began a confrontation as
part of an ambush that resulted in [Derrick] being fatally shot, all as part of
‘waging war’ against a rival gang.”
“Petitioner Acted With Intent To Kill[]
“Even after the amendments to the Penal Code in 2019, Petitioner
can still be held accountable for the murder[] of [Derrick], as an aider and
abettor, if he personally had an intent to kill.
“The jury in Petitioner’s trial had to have found Petitioner guilty of
aiding and abetting in the murder. It had to have been shown, beyond a
reasonable doubt, that Petitioner intended that [Derrick] be killed. The jury
instructions on aiding and abetting required a finding of Petitioner’s intent.
The jury was also instructed that Petitioner could also be held responsible
for the murder if he was part of a conspiracy, but the jury found Petitioner
not guilty of conspiracy. The guilty verdict for murder was therefore not
based upon a conspiracy theory. The jury must have found that [Petitioner]
was guilty of murder by way of aiding and abetting, which required that
Petitioner act with an intent that [Derrick] be killed.
“Petitioner’s intent may be inferred from the circumstances and
[Petitioner]’s acts. [Citations.] Express malice is shown when the
defendant ‘either desires the victim’s death, or knows to a substantial
certainty that the victim’s death will occur.’ [Citations.]
“In the present case it has been shown beyond a reasonable doubt …
from the credible evidence that Petitioner acted with malice. Petitioner
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manifested his intention to kill when he instigated, organized and caused
[Derrick]’s murder by searching for and finding the deadly weapon,
enlisting support from others, convincing them to follow him, hunting
[Derrick] down, and starting the confrontation that resulted in [Derrick]’s
death, all as part of ‘waging war’ against the rival gang.
“Petitioner is not eligible for release under … section 1172.6. It has
been demonstrated Petitioner is responsible for [Derrick]’s murder as an
aider and abettor who acted with his own intent to kill.”
“Petitioner Was A Major Participant Acting With Reckless Indifference To
Human Life[]
“Even after the amendments to the Penal Code in 2019, Petitioner
can also still be held responsible for the murder of [Derrick], as an aider
and abettor, if Petitioner personally acted with malice by being a ‘major
participant’ who acted ‘with reckless indifference to human life’.
“After reviewing the factors set forth in the Banks and Clark cases, it
is clear that Petitioner was a major participant who acted with reckless
indifference to human life when he participated in the incident which
lead [sic] to the death of [Derrick].
“The circumstances discussed above showing that Petitioner acted
with the intent to kill also support a finding, beyond a reasonable doubt,
that Petitioner was [a] major participant acting with reckless indifference to
human life; that discussion, supra, is incorporated herein by reference.
“Petitioner instigated, organized and led the deadly confrontation
with [Derrick] that ended in [Derrick]’s death. Petitioner’s [postconviction]
statements about the Incident show that he manipulated his two friends into
going with him to find [Derrick], whom Petitioner believed disrespected
their gang.
“Petitioner admitted to being out to get vengeance and he went to
two different places to obtain a firearm. Petitioner knew there was a
firearm during the second confrontation because he was the one who
decided a gun was needed. Petitioner admitted to knowing about the gun.
“Petitioner was present at the scene of the killing and was in a
position to facilitate or prevent the actual murder. Petitioner personally
called out [Derrick] to start the deadly encounter.
“Petitioner admitted to having an opportunity to stop the shooting
after the first two shots and he thought of doing so, but he did not. After
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the shooting, Petitioner ran, got the gun from the Shooter, and threw it
away. Petitioner did nothing to minimize the risk of the fatal shooting.
“Petitioner is not eligible for relief under … [s]ection 1172.6 for the
murder of [Derrick] as an aider and abettor who personally acted with
malice by being a ‘major participant’ who acted ‘with reckless indifference
to human life’.”
The trial court’s order concluded beyond a reasonable doubt that petitioner “could
still be convicted of murder even after the changes to [s]ection[s] 188 or 189 made
effective January 1, 2019, and he is, therefore, not eligible for relief under …
section 1172.6.”
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Wende and Delgadillo. The brief also included counsel’s declaration that petitioner was
advised he could file his own brief with this court. This court also advised petitioner that
he could file a supplemental letter brief.
Petitioner filed a supplemental letter brief and raised several arguments.
I. Senate Bill 1437 and Section 1172.6
We begin with Senate Bill 1437, which became effective in 2019 and “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) .… 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
[s]ection 190.2.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel).)
23.
“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. [Citation.] ‘Malice shall not be imputed to a person based solely on his or her
participation in a crime.’ [Citation.] One effect of this requirement was to eliminate
liability for murder as an aider and abettor under the natural and probable consequences
doctrine.… Thus, under prior law, a defendant who aided and abetted an intended assault
could be liable for murder, if the murder was the natural and probable consequence of the
intended assault. [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, supra, 15
Cal.5th at p. 449; People v. Harden (2022) 81 Cal.App.5th 45, 51–52.)
Senate Bill 1437’s amendments “maintained the viability of murder convictions
based on implied malice, and the definition of implied malice remains unchanged.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements).) As discussed in
issue III below, the amendments did not eliminate direct aiding and abetting for murder
because a direct aider and abettor must possess malice aforethought. (People v. Williams
(2022) 86 Cal.App.5th 1244, 1252.)
Senate Bill 1437 “added former section 1170.95, which created a process for those
convicted of murder under now obsolete accomplice liability theories to seek vacatur and
resentencing. Effective January 1, 2022, the Legislature revised section 1170.95 through
the passage of [Senate Bill 775] …. Petitioners who were convicted of attempted murder
and manslaughter under now obsolete theories may also seek relief.” (People v. Ramos
(2025) 112 Cal.App.5th 174, 183; People v. Reyes (2023) 97 Cal.App.5th 292, 295.)
Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6,
with no further change in text. (People v. Saavedra (2023) 96 Cal.App.5th 444, 446,
fn. 1.)
24.
A. The Prima Facie Determination
Section 1172.6 states that a petitioner may file for resentencing if “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 petitioner must declare: “(1) A complaint, information, or indictment 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. [¶] (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. [¶]
(3) The petitioner could not presently be convicted of murder or attempted murder
because of changes to [s]ection[s] 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a)(1)–(3).)
After counsel is appointed and the parties have the opportunity to submit briefing,
“the court shall hold a hearing to determine whether the petitioner has made a prima facie
case for relief.” (§ 1172.6, subd. (c).)
In making the prima facie determination, the trial court may look at the record of
conviction to determine whether a petitioner has made the prima facie showing. (People
v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) The record of conviction consists of the
charging documents, jury instructions, and verdict forms. (People v. Lovejoy (2024) 101
Cal.App.5th 860, 865.)
The court cannot not engage in factfinding or weigh credibility when making the
prima facie determination. (People v. Lovejoy, supra, 101 Cal.App.5th 860, 865.)
25.
Although the trial court may consider the “ ‘procedural history’ ” in a prior appellate
opinion, it cannot rely on the opinion’s factual summary to make the prima facie
determination. (People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238.)
B. The Evidentiary Hearing
“Once a petitioner establishes a prima facie case for relief and the superior court
issues an order to show cause, the matter proceeds to an evidentiary hearing ….” (People
v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to [s]ection[s] 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (d)(3).)
“The admission of evidence in the [evidentiary] hearing shall be governed
by the Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is admissible under
current law, including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural history of
the case recited in any prior appellate opinion. However, hearsay evidence
that was admitted in a preliminary hearing pursuant to subdivision (b) of
[s]ection 872 shall be excluded from the hearing as hearsay, unless the
evidence is admissible pursuant to another exception to the hearsay rule.
The prosecutor and the petitioner may also offer new or additional evidence
to meet their respective burdens.” (§ 1172.6, subd. (d)(3).)
At the evidentiary hearing, the trial court acts as an independent fact finder, makes
credibility determinations, weighs the evidence, and determines whether the People met
its burden to prove beyond a reasonable doubt that defendant was still guilty of murder
after the amendments to sections 188 and 189. (People v. Rodriguez (2024) 103
Cal.App.5th 451, 457; People v. Gudiel (2024) 107 Cal.App.5th 848, 858; Clements,
supra, 75 Cal.App.5th at p. 298; People v. Harden, supra, 81 Cal.App.5th at p. 51.)
26.
“Although the parties may offer new or additional evidence to meet their
respective burdens, section 1172.6, subdivision (d)(3) does not contemplate a whole new
trial on all the elements of murder. [Citation.] Rather, ‘[t]he retroactive relief provided
by [section 1172.6] is a legislative “act of lenity” intended to give defendants serving
otherwise final sentences the benefit of ameliorative changes to applicable criminal laws
and does not result in a new trial or increased punishment.’ [Citations.] Thus, the focus
at the evidentiary hearing phase of [a section] 1172.6 petition is ‘on evidence made
relevant by the amendments to the substantive definition of murder,’ which, in the
context of section 188, requires ‘the prosecution to prove that all principals to a murder
acted with malice aforethought.’ ” (Vargas, supra, 84 Cal.App.5th at p. 952.)
If the prosecution fails to meet its burden of proof, “the prior conviction, and any
allegations and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)
If the trial court “finds beyond a reasonable doubt that the petitioner is guilty of
murder notwithstanding the amendments to sections 188 and 189, the petitioner is
ineligible for relief under section 1172.6.” (Vargas, supra, 84 Cal.App.5th at p. 951.)
C. Appellate Review After the Evidentiary Hearing
On appeal from the trial court’s denial of a section 1172.6 petition after an
evidentiary hearing, we review questions of law independently, and the court’s
evidentiary rulings for an abuse of discretion. (People v. Reyes (2023) 14 Cal.5th 981,
988; People v. Waidla (2000) 22 Cal.4th 690, 724.)
“We review the trial judge’s fact finding for substantial evidence. [Citation.] We
‘ “examine the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value that would support a rational trier of fact in finding [the defendant
guilty] beyond a reasonable doubt.” ’ [Citation.] Our job on review is different from the
trial judge’s job in deciding the petition. While the trial judge must review all the
27.
relevant evidence, evaluate and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard, our job is to determine whether there
is any substantial evidence, contradicted or uncontradicted, to support a rational fact
finder’s findings beyond a reasonable doubt.” (Clements, supra, 75 Cal.App.5th at
p. 298.)
With these principles in mind, we turn to the trial court’s ruling and petitioner’s
claims of the court’s alleged errors.
II. Petitioner’s Reliance on Authorities That Address the Prima Facie Finding
In his supplemental letter brief, petitioner cites to several authorities in support of
his argument that in the “[22-]page opinion,” the trial court improperly denied his
section 1172.6 petition because the jury was instructed on imputed malice, and the
court’s error requires remand.
In making this argument, petitioner relies on holdings in the following cases to
assert the “bar for establishing a prima facie case is ‘very low’,” and judicial fact finding
is not allowed, citing Lewis, supra, 11 Cal.5th 952, 970–972; the record of conviction
must establish the jury made all of the findings necessary to support a conviction for
murder or attempted murder under current law, and the jury’s finding that the defendant
acted with the intent to kill does not foreclose resentencing, citing Curiel, supra, 15
Cal.5th at p. 433; a prima facie case was made, and an OSC must issue, because the
record does not indisputably show that he was ineligible for resentencing, citing People v.
Drayton (2020) 47 Cal.App.5th 965; the jury received instructions on imputed malice,
these instructions show he was convicted based on a now-invalid theory of murder, and
he made a prima facie showing, citing People v. Strong (2023) 13 Cal.5th 698, 712,
People v. Lee (2023) 95 Cal.App.5th 1164, and People v. Antonelli (2025) 17 Cal.5th
719; and that an evidentiary hearing is required because the record of conviction does not
conclusively negate the possibility that the jury convicted the defendant of murder based
on an imputed malice theory, and the trial court could not make factual findings from the
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prior appellate opinion to deny his section 1172.6 petition, citing People v. Langi (2022)
73 Cal.App.5th 972.
Petitioner has cited legal principles and authorities that address the trial court’s
prima facie determination under section 1172.6, and held the court therein improperly
conducted the prima facie hearing, erroneously relied on certain evidence that was not
part of the record of conviction, and remand was required for the court to issue an OSC
and conduct an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 970–972
[appointment of counsel and other procedural requirements prior to the trial court making
the prima facie determination]; Curiel, supra, 15 Cal.5th at pp. 440–441 [reversal of
summary denial of petition and remand for OSC and evidentiary hearing]; People v.
Drayton, supra, 47 Cal.App.5th at p. 968 [reversal of trial court’s summary denial of
petition without a prima facie hearing]; People v. Strong, supra, 13 Cal.5th at pp. 703,
720–721 [reversal of prima facie finding and remand for OSC and evidentiary hearing];
People v. Lee, supra, 95 Cal.App.5th at p. 1169 [reversal of prima facie finding and
remand for OSC and evidentiary hearing]; People v. Antonelli, supra, 17 Cal.5th
at pp. 722–723, 724–726 [reversal of summary denial of defendant’s second petition and
remand for further proceedings]; People v. Langi, supra, 73 Cal.App.5th at p. 976
[reversal of summary denial because trial court improperly relied on prior appellate
opinion]).
Moreover, petitioner raised these arguments without acknowledging what
happened in his case, and that the trial court herein followed section 1172.6 when it ruled
on his petition. Upon receipt of his petition, the court appointed counsel and conducted a
hearing on the prima facie determination. At the prima facie hearing, the court did not
make factual findings, or rely on jury instructions or a prior appellate opinion, to find
petitioner failed to make a prima facie showing for relief. Instead, the parties agreed
there was a prima facie case for resentencing and recognized that petitioner was not tried
29.
as the actual killer, the jury was instructed on imputed malice theories, and the
prosecution partially relied on the natural and probable consequences doctrine.
As explained in Lewis, Curiel, Strong, Antonelli, and the other cases addressed in
his supplemental letter brief, the trial court found the petition stated a prima facie case,
issued the OSC, and set a briefing schedule for the evidentiary hearing. Thereafter, the
court received briefing from the parties, including the prosecution’s motion to introduce
documentary evidence at the evidentiary hearing.
The trial court conducted the evidentiary hearing and addressed the petition on the
merits. It heard the parties’ arguments as to whether the prosecution proved beyond a
reasonable doubt that petitioner was still guilty of murder after the amendments to
sections 188 and 189, and reserved ruling on petitioner’s objections to the documentary
evidence.
None of the authorities cited by petitioner in his supplemental letter brief support
his current arguments, or are applicable to the outcome of his petition. The trial court
indeed filed a 22-page opinion that extensively reviewed the factual and procedural
background for this case, stated that it already made the prima facie determination,
recited the facts that it relied upon from the voluminous documentary evidence, discussed
the applicable legal authorities, and overruled petitioner’s evidentiary objections.
In denying the petition, the court did not rely on the prior appellate opinion or the
jury instructions but, as required by section 1172.6, made extensive factual and legal
findings after the evidentiary hearing and held petitioner was still guilty of murder
beyond a reasonable doubt as a direct aider and abettor after the amendments to
sections 188 and 189.
III. Petitioner’s Evidentiary Objections
Also in his supplemental letter brief, petitioner raised objections to the trial court’s
admission and consideration of certain evidence at the evidentiary hearing. We address
his contentions, even though it is well-settled that “the ‘defendant’s failure to make a
30.
timely and specific objection’ on the ground asserted on appeal makes that ground not
cognizable.” (People v. Seijas (2005) 36 Cal.4th 291, 302; People v. Williams (1988) 44
Cal.3d 883, 906.)
Petitioner argues it was improper for the trial court to deny his petition “based
solely on the hearsay statement contained in the [prosecution’s] briefing.” Petitioner fails
to clarify exactly what statement he is referring to, and he did not raise such an objection
at the evidentiary hearing.
In any event, the trial court did not improperly rely on hearsay evidence to deny
his petition. Petitioner did not object to the trial court’s consideration of the preliminary
hearing transcript. Despite the lack of an objection, the court correctly declined to
consider hearsay evidence from a law enforcement officer who testified at the
preliminary hearing pursuant to section 872, subdivision (b). The reporter’s transcript
from petitioner’s jury trial was also correctly admitted under section 1172.6,
subdivision (d)(3). (People v. Cody, supra, 92 Cal.App.5th at p. 103.) The court cited to
the prior appellate opinion from petitioner’s direct appeal for the limited and permissible
purpose of reciting the procedural history leading to his murder conviction, again
consistent with the provisions of section 1172.6, subdivision (d)(3).
Petitioner’s only objection at the evidentiary hearing was to the CRAs and his
statements in those reports and at the parole hearings. “It is well settled that a
defendant’s statements in a parole risk assessment report and testimony at a parole
hearing fall within the ambit of ‘ “new or additional evidence,” ’ and are admissible at a
section 1172.6 evidentiary hearing. (People v. Zavala (2024) 105 Cal.App.5th 366, 373.)
“[I]ncriminating statements made by a prisoner during parole proceedings may be
admitted at an evidentiary hearing under section 1172.6, subdivision (d)(3) without
violating the privilege.” (People v. Hart (2025) 113 Cal.App.5th 1099, 1107.) The court
stated it only considered petitioner’s statements made at the parole proceedings and
31.
contained in the CRAs, it did not consider the rest of the contents of the CRAs, and
petitioner’s statements were admissible.
Petitioner also objects to the trial court’s reliance on stipulations when it denied
his petition, but fails to specify the subject of the stipulation or nature of his objection,
and he did not raise this objection at the evidentiary hearing. As we have explained, in
the order that denied the petition, the court clarified that “unless a document is referenced
below, the Court did not consider such a document in the rendering of this decision.”
When it recited the trial evidence, the court stated that “[a] number of stipulations were
entered during the trial regarding a number of uncontroverted facts,” but only cited to
one stipulation at petitioner’s jury trial—that “the Shooter was 15 years old at the time of
the Incident and had previously spray painted a house which was related to a gang, and
the Shooter hit someone in the nose[,] breaking it.” Petitioner fails to explain why this
stipulation was objectionable, particularly since it represented the court’s
acknowledgement that someone else was the shooter, and his claim lacks merit.
IV. Substantial Evidence That Petitioner Was a Direct Aider and Abettor
As explained in issue III, petitioner’s arguments in his supplemental letter brief are
based on authorities that address the prima facie determination, and are inapplicable to
the denial of a petition after an evidentiary hearing. However, he also raises a general
argument that remand is required for the trial court to grant his petition for resentencing
of his second degree murder conviction.
We turn to the trial court’s reasons for denying the petition after the evidentiary
hearing as stated in its order, and begin with the finding that petitioner was guilty of
murder as a direct aider and abettor who acted with malice and the intent to kill.
A. Murder and Malice
“Second degree murder is ‘the unlawful killing of a human being with malice
aforethought but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.’ [Citation.] Malice
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may be either express, i.e. when a defendant manifests an intention to kill, or implied.
[Citation.] ‘ “Malice is implied 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.” ’ ” ’ ” (Clements, supra, 75 Cal.App.5th at
p. 299.)
Direct evidence of a defendant’s malice and intent to kill rarely exists, and it may
be inferred from the circumstances of the crime and the defendant’s words and actions.
(People v. Smith (2005) 37 Cal.4th 733, 741; People v. Sanchez (2016) 63 Cal.4th 411,
457.)
Imputed malice and implied malice are not the same doctrines. (People v. Schell
(2022) 84 Cal.App.5th 437, 443–444.) The amendments enacted by Senate Bills 1437
and 775 “maintained the viability of murder convictions based on implied malice, and the
definition of implied malice remains unchanged.” (Clements, supra, 75 Cal.App.5th at
p. 298.)
B. Principals, Accomplices, and Aiders and Abettors
The trial court found it was undisputed petitioner was not convicted as the actual
shooter, and that he was convicted after his jury trial of second degree murder as an aider
and abettor.
“ ‘All persons concerned in the commission of a crime, … whether they directly
commit the act constituting the offense, or aid and abet in its commission … are
principals in any crime so committed.’ [Citation.] An aider and abettor’s ‘guilt is based
on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and
own mental state.’ ” (People v. Krueger (2025) 115 Cal.App.5th 431, 437.)
“Generally, a defendant may be convicted of a crime either as a perpetrator or as
an aider and abettor. [Citation.] An aider and abettor can be held liable for crimes that
were intentionally aided and abetted (target offenses); an aider and abettor can also be
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held liable for any crimes that were not intended, but were reasonably foreseeable
(nontarget offenses). [Citation.] Liability for intentional, target offenses is known as
‘direct’ aider and abettor liability; liability for unintentional, nontarget offenses is known
as the ‘ “ ‘natural and probable consequences’ doctrine.” ’ ” (In re Loza (2018) 27
Cal.App.5th 797, 801, fn. omitted.)
C. Indirect Aiding and Abetting; Natural and Probable Consequences Doctrine
The natural and probable consequences doctrine, as it previously applied to
indirect aiding and abetting of murder, provided that “a defendant can be found guilty of
murder if he or she aids and abets a crime (i.e., the target crime) and murder (i.e., the
nontarget crime) is a natural and probable consequence of that target crime.” (People v.
Chavez (2018) 22 Cal.App.5th 663, 683.) “[A] defendant who aided and abetted an
intended assault could be liable for murder, if the murder was the natural and probable
consequence of the intended assault. [Citation.] The defendant need not have intended
the murder or even subjectively appreciated the natural and probable consequences of the
intended crime.” (Curiel, supra, 15 Cal.5th at p. 449.)
Senate Bill 1437 ended this form of liability by amending section 188,
subdivision (a)(3) to state that, except in cases of felony murder as addressed in
section 189, subdivision (e), “in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3), italics added.) As a result of
these amendments, “a defendant cannot be convicted of murder based on the doctrine of
natural and probable consequences, even with a showing of malice aforethought.
[Citation.] It is an invalid theory. Murder liability requires a different, valid theory, such
as direct aiding and abetting.” (Curiel, supra, 15 Cal.5th at p. 462.)
D. Direct Aiding and Abeting and the Intent to Kill
“Senate Bill 1437 ‘does not eliminate direct aiding and abetting liability for
murder because a direct aider and abettor to murder must possess malice aforethought.’
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[Citation.] ‘Under a direct aider and abettor liability theory, the prosecution must prove
the person who is not the actual killer “engaged in the requisite acts [actus reus] and had
the requisite intent [mens rea]” to aid and abet the target crime of murder.’ [Citation.] A
direct aider and abettor’s ‘guilt is based on a combination of the direct perpetrator’s acts
and the aider and abettor’s own acts and own mental state.’ ” (People v. Williams, supra,
86 Cal.App.5th at p. 1252.)
As a result, “to establish liability for murder under the theory of direct aiding and
abetting, ‘the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or facilitating its commission.’ ”
(Curiel, supra, 15 Cal.5th at pp. 466–467.) A direct aider and abettor must “necessarily
‘know and share the murderous intent of the actual perpetrator.’ ” (People v. Offley
(2020) 48 Cal.App.5th 588, 596.)
E. Analysis
We have quoted the trial court’s ruling at length, particularly the evidence it relied
on to make its factual and legal findings. We conclude the court’s finding that petitioner
was guilty of murder beyond a reasonable doubt as a direct aider and abettor, who acted
with malice and the intent to kill, is supported by overwhelming substantial evidence.
Petitioner initiated, encouraged, and ensured that Derrick would be shot. The
incident began only because petitioner felt disrespected by Derrick’s mere presence at the
park with his family. Petitioner admitted that he was determined to respond to what he
perceived as an act of disrespect. Petitioner’s first attempt to obtain a weapon was
unsuccessful, but he looked for and located another acquaintance who had a weapon.
Petitioner convinced the shooter and a third person to join him to look for Derrick.
Petitioner, the shooter, and the third man tracked down Derrick at another location and
concealed themselves behind a tree. Petitioner initiated the confrontation by stepping
away from the tree and calling out to Derrick by one of his nicknames. The shooter
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emerged from behind the tree, petitioner stood next to him, and the shooter fired multiple
shots at Derrick. When petitioner was arrested shortly after the shooting, he complained,
“ ‘Why do you have to be so mean to me; we were only waging war.’ ”
There is substantial evidence to support the trial court’s finding that petitioner
“instigated, organized and caused” Derrick’s murder “by searching for and finding the
deadly weapon, enlisting support from others, convincing them to follow him, hunting
[Derrick] down, and starting the confrontation that resulted in [Derrick]’s death,” such
that he was guilty of second degree murder based on malice and his intent to kill.
V. The Trial Court’s Findings That Petitioner Was a Major Participant Who Acted
With Reckless Indifference
The trial court’s finding—that petitioner was guilty of murder beyond a reasonable
doubt as a direct aider and abettor who acted with malice and intent to kill—is supported
by substantial evidence. Once the court made that decision, it was not required to make
any further factual or legal findings after the evidentiary hearing in order to deny the
petition under section 1172.6.
However, the trial court addressed the parties’ additional arguments about whether
petitioner was also guilty of murder as a major participant who acted with reckless
indifference to human life. We briefly review the court’s ruling on this basis.
A. Section 189, Subdivision (e)
The amendments enacted by Senate Bill 1437, with certain exceptions, “narrowed
the application of the felony-murder rule by adding section 189, subdivision (e) .…
[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
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underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of [s]ection 190.2.’ (§ 189, subd. (e).)” (Curiel, supra, 15 Cal.5th at
p. 448.)
Section 190.2 is the felony-murder special-circumstances statute, which “identifies
the circumstances under which murderers and accomplices can be punished by death or
life imprisonment without parole.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7.)
“For defendants who did not kill and lacked intent to kill, section 190.2, subdivision (d)
permits such punishment only if they acted ‘with reckless indifference to human life and
as a major participant’ [in] a qualifying felony like robbery.” (Douglas, at p. 7.) “The
statute, by its text, imposes an actus reus requirement, major participation in the
enumerated felony, and a mens rea requirement, reckless indifference to human life.”
(In re Scoggins (2020) 9 Cal.5th 667, 674.)
B. Banks and Clark
The interpretations in Banks and Clark of the phrases “major participant” and
“reckless indifference” for purposes of section 190.2, are applicable to determine whether
a petitioner is still guilty of murder after the amendments to section 189,
subdivision (e)(3). (In re Taylor (2019) 34 Cal.App.5th 543, 561.)
Banks considered “under what circumstances an accomplice who lacks the intent
to kill may qualify as a major participant .…” (People v. Banks, supra, 61 Cal.4th at
p. 794.) Banks listed the following factors that should be considered in making that
determination: “What role did the defendant have in planning the criminal enterprise that
led to one or more deaths? What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular dangers posed by the
nature of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own actions or inaction play a
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particular role in the death? What did the defendant do after lethal force was used?”
(Id. at p. 803, fn. omitted.)
Clark defined “reckless indifference to human life” as being “ ‘implicit in
knowingly engaging in criminal activities known to carry a grave risk of death.’ ”
(People v. Clark, supra, 63 Cal.4th at p. 616.) “Relevant factors include: Did the
defendant use or know that a gun would be used during the felony? How many weapons
were ultimately used? Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim? What was the duration of the
interaction between the perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for violence or likelihood
of using lethal force? What efforts did the defendant make to minimize the risks of
violence during the felony?” (In re Scoggins, supra, 9 Cal.5th at p. 677, citing Clark, at
pp. 618–623.)
C. Analysis
In his supplemental letter brief, petitioner asserts the trial court erroneously relied
on the major participant/reckless indifference doctrine to deny his petition. Petitioner
asserts the Banks and Clark factors only apply to determine whether a first degree
felony-murder conviction is still valid for someone who is not an actual killer and did not
act with the intent to kill after the amendments to sections 188 and 189. Petitioner asserts
the court’s reliance on Banks and Clark is contrary to applicable law, and the court relied
on a legally incorrect and inadequate theory to deny his petition. Petitioner further argues
the court’s alleged error violated his constitutional rights to due process and equal
protection because it purportedly relied on the jury instructions to make the major
participant/reckless indifference findings.
Assuming, without deciding, that the trial court improperly addressed the Banks
and Clark factors, such a finding was superfluous in this case because we may affirm the
court’s ruling if correct in law on any ground. (People v. Camacho (2022) 14 Cal.5th 77,
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123; People v. Anaya (2025) 117 Cal.App.5th 615, 622.) “Our task is to review the trial
court’s ruling, not its reasoning.” (People v. Turner (2020) 10 Cal.5th 786, 807.) “ ‘ “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 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.” ’ ” (People v.
Zapien (1993) 4 Cal.4th 929, 976.)
After conducting the evidentiary hearing, the trial court found beyond a reasonable
doubt that petitioner was still guilty of murder and ineligible for relief under
section 1172.6 because he was a direct aider and abettor who acted with malice and the
intent to kill as required by the amendments to section 188, and that finding is supported
by substantial evidence. The court was not required to make any further factual or legal
determinations to deny petitioner’s section 1172.6 petition after the evidentiary hearing.
As a result, the court’s purported error in discussing Banks and Clark was not prejudicial
under any standard because petitioner would not have achieved a more favorable result in
the absence of the superfluous finding. (People v. Rodriguez, supra, 103 Cal.App.5th at
p. 459.)
After independent review of the record, we find no reasonably arguable factual or
legal issues exist.
DISPOSITION
The judgment is affirmed.
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