Filed 10/9/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084354
v. (Super.Ct.No. RIF108728)
REINA DOLORES REYES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn Pulliam, Judge.
Reversed with directions.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Andrews Mestman, Seth M. Friedman and James M.
Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
In 2005, a jury convicted Reina Dolores Reyes of one count of conspiracy to
commit murder and two counts of attempted murder. Reyes subsequently petitioned for
resentencing relief under Penal Code section 1172.6, and the trial court denied the
petition at the prima facie stage. (Unlabeled statutory references are to the Penal Code.)
1
The court found that the conviction of conspiracy to commit murder precluded relief as a
matter of law because the jury must have found that Reyes personally harbored specific
intent to kill.
We conclude that the trial court erred, because the jury at Reyes’s trial was given a
version of CALJIC No. 8.69 that erroneously allowed her to be convicted of conspiracy
to commit murder without a finding that she had intent to kill. (See People v. Garton
(2018) 4 Cal.5th 485, 516 (Garton).) In addition, the jury was instructed that it could
convict Reyes of the attempted murders if they were natural and probable consequences
of the criminal objective of the conspiracy. Under those instructions, the jury could have
convicted Reyes of attempted murder and conspiracy to commit murder without finding
that she acted with malice. The conviction of conspiracy to commit murder consequently
did not render Reyes ineligible for relief under section 1172.6.
BACKGROUND1
I. The trial
In 2005, the People charged Reyes and two codefendants, Joe Varela (Reyes’s
brother) and Tony Armster, with numerous felony offenses arising from a drive-by
shooting at Justin S.’s home in 2003. The charges against Reyes, Varela, and Armster
included one count of conspiracy to commit murder (§ 182, subd. (a)(1); count 1), five
counts of attempted murder (§§ 187, subd. (a), 664; counts 2-6), and one count of assault
with a firearm (§ 245, subd. (a)(2); count 7).
1
We granted the People’s unopposed motion to take judicial notice of the records in
Reyes’s direct appeal. (People v. Armster (Dec. 7, 2007, E038151) [nonpub. opn.].)
2
The shooting happened on the same day that Justin advised his friend Roque V. to
end Roque’s one-year romantic relationship with Reyes. Roque did so later that day and
also told Reyes that she had to move out of his house. Roque then called Justin, who
came to Roque’s house to help get Reyes to leave. Reyes confronted Justin and
threatened him: “‘I’m going to fucking kill you, got a bullet with your name on it, and
I’m going to call my brother to come shoot your house.’”
Reyes subsequently called Varela. Donzelle Benton (a housemate of Varela’s)
then drove Varela and Armster (an acquaintance of Benton’s) to pick up Reyes. Benton,
Reyes, Armster, and Varela later drove to Justin’s house. Armster and Varela fired
multiple shots at the house from the car, striking and nonfatally wounding one victim
(Michael R.).
Reyes was tried before a separate jury. Her jury was instructed with CALJIC No.
8.69 on conspiracy to commit murder. The instruction stated that conspiracy to commit
murder is “an agreement entered into by two or more persons with the specific intent to
agree to commit the crime of murder and with the further specific intent to commit that
murder followed by an overt act .... [¶] The crime of conspiracy to commit murder
requires proof that the conspirators harbored express malice aforethought, namely, the
specific intent to kill unlawfully another human being.” The instruction then defined the
elements of conspiracy to commit murder as follows: “One, two or more persons entered
into an agreement to kill unlawfully another human being; two, at least two other persons
specifically intended to enter into an agreement with one or more of the other persons for
that purpose; three, at least two of the persons to the agreement harbored express malice
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aforethought, namely, a specific intent to kill unlawfully another human being; and, four,
an overt act was committed in this state by one or more of the persons who agreed and
intended to commit murder.” (Italics added.) (See CALJIC No. 8.69.)
The jury was instructed on joint responsibility for conspiracy with CALJIC No.
6.11, as follows: “A member of a conspiracy is not only guilty of the particular crime
that to her knowledge her confederates agreed to and did commit, but is also liable for the
natural and probable consequences of any crime or act of a coconspirator to further the
object of the conspiracy, even though that crime or act was not intended as a part of the
agreed-upon objective.” The instruction further provided: “You must determine whether
the defendant is guilty as a member of a conspiracy to commit the originally agreed-upon
crime or crimes, and if so, whether the crimes alleged in Counts 2 through 6 [i.e., the
attempted murder counts] were perpetrated by coconspirators in furtherance of that
conspiracy and were a natural and probable consequence of the agreed-upon criminal
objective of that conspiracy.” The instruction explained the concept of natural and
probable consequences as follows: “In determining whether a consequence is natural and
probable, you must apply an objective test based not on what the defendant actually
intended, but on what a person of reasonable and ordinary prudence would have expected
would be likely to occur.”
The jury was also instructed on attempted murder (CALJIC No. 8.66), direct aider
and abettor liability (CALJIC No. 301), the kill zone (CALJIC No. 8.66.1), and liability
under the natural and probable consequences doctrine as a theory of liability for count 7
(assault with a firearm) (CALJIC No. 3.02).
4
The jury convicted Reyes of conspiracy to commit murder (count 1), attempted
willful, deliberate, and premeditated murder of Justin and Michael (counts 2 & 6), and
assault with a firearm (count 7). The jury acquitted Reyes on two attempted murder
counts (counts 3 & 4) and was deadlocked on the other attempted murder count (count 5),
which was later dismissed.
Reyes was sentenced to an aggregate term of 51 years eight months to life in state
prison, which included consecutive sentences for the conspiracy and attempted murder
convictions. Reyes appealed. In an unpublished opinion, we directed the trial court to
stay both the 25-years-to-life sentence for the conspiracy conviction and an associated
enhancement, but we otherwise affirmed the judgment. (People v. Armster, supra,
E038151.) On remand, Reyes was resentenced to an aggregate term of 25 years eight
months to life in state prison.
II. Section 1172.6 proceeding
In 2022, Reyes filed a petition to vacate her attempted murder convictions under
what is now section 1172.6. In support of the petition, she subsequently filed a
memorandum of points and authorities with attached exhibits, including certain jury
instructions, jury questions, parts of the verdict, and an excerpt of the reporter’s
transcript. Reyes argued that the instruction on conspiracy to commit murder erroneously
allowed the jury to convict her of that crime without finding that she had the specific
intent to kill, and it was therefore possible that the jury convicted her of the attempted
murder of Justin (count 2) on a now-invalid theory of liability. With respect to the
attempted murder of Michael (count 6), she argued that she was eligible for resentencing
5
because the kill zone instruction, along with the prosecutor’s closing argument, allowed
the jury to convict her “on a theory under which malice is imputed to a person based
solely on his participation in a crime.”
The People filed a request for judicial notice, asking that the court take judicial
notice of the complete set of jury instructions, this court’s opinion from the direct appeal,
and all of the records from the trial. The People argued that under People v. Medrano
(2021) 68 Cal.App.5th 177 (Medrano I), the conspiracy conviction rendered Reyes
ineligible for relief as a matter of law as to both counts of attempted murder.
The trial court denied the petition without issuing an order to show cause,
reasoning that “conspiracy to commit murder requires the specific intent to unlawfully
kill another human being.”
DISCUSSION
Reyes contends that the trial court prejudicially erred by failing to comply with
certain procedural requirements of section 1172.6. The People counter that any such
error was harmless because the conviction of conspiracy to commit murder rendered
Reyes ineligible for resentencing relief under section 1172.6 as a matter of law. We
disagree with the People. Because Reyes’s jury received erroneous instructions on the
elements of conspiracy to commit murder, the jury’s finding of guilt on that charge does
not preclude relief as a matter of law.
“‘[U]nder the natural and probable consequences doctrine, an accomplice is guilty
not only of the offense he or she directly aided or abetted (i.e., the target offense), but
also of any other offense committed by the direct perpetrator that was the “natural and
6
probable consequence” of the crime the accomplice aided and abetted (i.e., the nontarget
offense).’” (People v. Curiel (2023) 15 Cal.5th 433, 449 (Curiel).)
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) eliminated the natural and probable consequences doctrine as a theory of
liability for murder and attempted murder and narrowed the definition of first degree
felony murder “to ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f); §§ 188, 189.) Senate Bill 1437 eliminated the natural and probable
consequences doctrine for murder and attempted murder by amending section 188 to
provide that, with the exception of first degree felony murder under section 189, a
defendant must “act with malice aforethought” in order to be convicted of murder, and
“[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)
Senate Bill 1437 created a procedural mechanism for retroactive application of
those changes in the law to defendants who were convicted of murder under prior law but
could not be convicted under current law. (§ 1172.6; Curiel, supra, 15 Cal.5th at p. 449.)
The Legislature subsequently amended the statute to make it applicable to defendants
convicted of “attempted murder under the natural and probable consequences doctrine.”
(§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 1; see also Curiel, at p. 449.)
Upon the filing of a facially sufficient petition under section 1172.6, the trial court
must determine whether the petitioner has made a prima facie showing of entitlement to
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relief. (§ 1172.6, subd. (c); see generally People v. Lewis (2021) 11 Cal.5th 952, 971-
972.) In conducting the prima facie review, the court treats the petitioner’s factual
allegations as true and makes a preliminary assessment of whether the petitioner would
be entitled to relief if those allegations were proved. (Lewis, at p. 971.) In determining
whether the petitioner has made a prima facie showing or the allegations are conclusively
rebutted by the record, the trial court may review the record of conviction. (Id. at p. 972;
People v. Lovejoy (2024) 101 Cal.App.5th 860, 865 (Lovejoy).) At the prima facie stage,
the “court should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, at p. 972.)
We independently review a trial court’s denial of a section 1172.6 petition at the
prima facie stage. (Lovejoy, supra, 101 Cal.App.5th at p. 865.)
Because Reyes was convicted of attempted murder, she is prima facie eligible for
relief under section 1172.6 if her convictions may have been based on a theory of
imputed malice, such as the natural and probable consequences doctrine.2 (§ 1172.6,
subd. (a)(1).) The petition therefore could properly be denied at the prima facie stage
“only if the record affirmatively demonstrates the jury did not rely” on such a theory.
2
Strictly speaking, the present case does not involve the natural and probable
consequences doctrine, in which the defendant directly aids and abets the target offense
and is held liable for crimes committed as a natural and probable consequence of that
offense. Rather, this case involves conspiracy liability, in which the defendant conspires
to commit the target offense and is held liable for crimes committed in furtherance of the
conspiracy and as a natural and probable consequence of the agreed target offense. For
purposes of section 1172.6 petitions concerning attempted murder convictions, the case
law has treated the two theories similarly. (See Lovejoy, supra, 101 Cal.App.5th at pp.
866-867.)
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(Lovejoy, supra, 101 Cal.App.5th at p. 865.) Reyes’s record of conviction does not
demonstrate that.
“A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act ‘by one or more of the parties to such agreement’ in furtherance of the
conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) “‘[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; Medrano I, supra,
68 Cal.App.5th at p. 183.) “Conspiracy to commit murder may be based only on express
malice, i.e., an intent to kill.” (Beck & Cruz, at p. 642.) A conviction of conspiracy to
commit murder thus “requires a finding of intent to kill.” (People v. Swain (1996) 12
Cal.4th 593, 607.)
The instruction on conspiracy to commit murder that was given to Reyes’s jury
was a version of CALJIC No. 8.69 that the Supreme Court has since concluded is
erroneous. (Garton, supra, 4 Cal.5th at p. 516; see also People v. Petznick (2003) 114
Cal.App.4th 663, 681 (Petznick).) The erroneous instruction permitted the jury to find
Reyes guilty of conspiracy to commit murder if “at least two of the persons to the
agreement harbored express malice aforethought, namely, a specific intent to kill
unlawfully another human being.” (Italics added.) “Asking the jury to find specific
intent for ‘at least two’ conspirators in a conspiracy with more than two members, none
of whom is feigning involvement, could potentially lead a jury to find an individual
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conspirator guilty without finding that he or she possessed a specific intent to agree or to
kill.”3 (Garton, at p. 516.) But a defendant cannot be guilty of conspiracy to commit
murder unless the defendant was “one of the participants who harbored the specific intent
to kill.” (Petznick, at p. 681.)
The flawed instruction on conspiracy to commit murder thus erroneously allowed
the jury to find that Reyes conspired to commit murder without finding that she possessed
intent to kill. (See Petznick, supra, 114 Cal.App.4th at p. 681 [the erroneous instruction
allows a jury to find a defendant “guilty of conspiracy to commit murder without regard
to whether or not he [or she] personally intended to kill so long as they found that at least
two of the other participants harbored that intent”].)
The jury was instructed that it could convict Reyes on the attempted murder
counts if it convicted her of conspiracy to commit murder and also found that the
attempted murders were “perpetrated by coconspirators in furtherance of that conspiracy
and were a natural and probable consequence of the agreed-upon criminal objective of
that conspiracy.” As a result, the instructions allowed the jury to convict Reyes of
attempted murder on a theory of imputed malice. That is, the jury could have convicted
her of attempted murder without finding that she harbored malice herself. Rather, the
jury could in effect have imputed malice to her “based solely on . . . her participation in a
3
The use notes for CALJIC No. 8.69 explain that this version of the instruction
substitutes “at least two” for “each” in order “to accommodate the situation where there is
a feigned accomplice,” such as “‘“a false coconspirator or government agent.”’” (Use
Note to CALJIC No. 8.69; Garton, supra, 4 Cal.5th at p. 516.)
10
crime” (§ 188, subd. (a)(3)), namely, the crime of conspiracy to commit murder, for
which the jury (erroneously) was not required to find that she acted with malice.
That is prohibited by section 188 as amended by Senate Bill 1437. And because it
is possible that the jury convicted Reyes of attempted murder on a now-invalid theory,
her record of conviction does not show that as a matter of law she is ineligible for relief
under section 1172.6. The trial court therefore erred by denying her petition at the prima
facie stage.
The People’s argument to the contrary is based on cases holding that a conviction
of conspiracy to commit murder precludes eligibility for relief under section 1172.6 on
associated murder or attempted murder convictions. (Medrano I, supra, 68 Cal.App.5th
at pp. 182-186 [conspiracy to commit murder and first degree murder of same victim
targeted by the conspiracy]; People v. Medrano (2024) 98 Cal.App.5th 1254, 1267-1268
(Medrano II) [same]; People v. Nguyen (2024) 103 Cal.App.5th 668, 672-674, 679-680,
686 [conspiracy to commit murder and first degree murders of target and nontarget
victims]; Lovejoy, supra, 101 Cal.App.5th at pp. 860-868 [conspiracy to commit murder
and attempted murder of same victim targeted by the conspiracy].) Those cases are
distinguishable because the juries in those cases were correctly instructed on the elements
of conspiracy to commit murder. (Medrano I, at pp. 182-186; Medrano II, at pp. 1267-
1268; Nguyen, at pp. 674-675, 678-679; Lovejoy, at pp. 865-866.) Consequently, when
the juries in those cases convicted the defendants of conspiracy to commit murder, they
necessarily found that the defendants harbored specific intent to kill. (Medrano I, at
pp. 184-186; Medrano II, at p. 1267; Nguyen, at pp. 678-679; Lovejoy, at p. 866.) But
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unlike the juries in Medrano I, Medrano II, Nguyen, and Lovejoy, Reyes’s jury could
have convicted her of conspiracy to commit murder without finding that she had intent to
kill, because of the erroneous instruction on the elements of conspiracy to commit
murder. (Petznick, supra, 114 Cal.App.4th at p. 681.)
Because it is possible that the jury convicted Reyes of attempted murder on a now-
invalid theory, her record of conviction does not establish as a matter of law that she is
ineligible for relief under section 1172.6. The trial court therefore erred by denying
Reyes’s petition at the prima facie stage. On remand, the court must issue an order to
show cause and conduct an evidentiary hearing. (§ 1172.6, subds. (c), (d).) We express
no opinion on whether Reyes should be granted relief following the hearing.
DISPOSITION
The order denying Reyes’s petition under section 1172.6 is reversed. The trial
court is directed to issue an order to show cause under section 1172.6, subdivision (c),
and to conduct an evidentiary hearing under section 1172.6, subdivision (d).
CERTIFIED FOR PUBLICATION
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
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