Fear Not Law CA Pub. Decisions

P. v. Reyes CA4/2

Filed 10/9/26
CA Pub. Decisions

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.)

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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

3
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).

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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

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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.)
8
(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

9
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

11
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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