Filed 9/24/26 P. v. Stopani CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B347904
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. XSEVA124204,
v. VA124204)
DANIEL CESAR STOPANI
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Efrain M. Aceves, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah
P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 2014, a jury convicted defendant Daniel Cesar Stopani of second
degree murder and found true firearm and criminal street gang
enhancements. A decade later, defendant filed a petition for resentencing
under Penal Code section 1172.6.1 The court summarily denied the petition
at the prima facie stage. We affirm.
BACKGROUND2
I. The Offense Conduct
On March 16, 2012, Michael Soto was selling marijuana in the parking
lot of a strip mall. Around noon, defendant and Eddie Lopez approached Soto
from different directions. Defendant approached Soto from the front, said
“Whittier Trece,” and punched him in the face. Almost immediately, Lopez,
who had approached Soto from the back, pulled a silver revolver from his
waistband and shot him in the head, then shot him twice more in the back as
Soto fell down. After the shooting, Lopez ran away.3
1 All further statutory references are to the Penal Code unless otherwise
stated.
2 We grant the Attorney General’s request for judicial notice of the record
in defendant’s direct appeal. (People v. Lopez (Dec. 4, 2015, B259051)
[nonpub opn.].)
3 As the truth of the facts of the crime recited in the opinion are not
necessary for our resolution of this appeal, we summarize them only for the
basis of defendant’s conviction. (See People v. Woodell (1998) 17 Cal.4th 448,
459–460.)
2
II. Jury Instructions, Conviction, and Sentencing
Defendant and Lopez were charged with murder. The information
further alleged firearm sentencing enhancements and gang enhancements.
Defendant and Lopez were tried together.
During trial, the jury was not instructed on the felony murder rule or
the natural and probable consequences doctrine. The jury was instructed on
malice murder and aiding and abetting, which are central to defendant’s
argument in this appeal.
As to aiding and abetting generally, the court instructed the jury with
CALCRIM No. 400, which stated, “A person may be guilty of a crime in two
ways. One, he or she may have directly committed the crime. I will call that
person the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. [¶] A person is guilty of a
crime whether he or she committed it personally or aided and abetted the
perpetrator.” The court also instructed the jury with CALCRIM No. 401,
which described the elements required to find a defendant aided and abetted
an intended crime. The relevant portion of the instruction provided: “To
prove that the defendant is guilty of a crime based on aiding and abetting
that crime, the People must prove that: “[¶] 1. The perpetrator committed
the crime; [¶] 2. The defendant knew that the perpetrator intended to
commit the crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing the crime;
[¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if
he or she knows of the perpetrator's unlawful purpose and he or she
specifically intends to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.”
On the issue of malice aforethought, the court instructed the jury with
CALCRIM No. 520 as follows: “The defendant[] [is] charged with murder in
violation of Penal Code section 187. [¶] To prove that the defendant is guilty
of this crime, the People must prove that: [¶] 1. The defendant committed an
act that caused the death of another person; [¶] AND [¶] 2. When the
defendant acted, he had a state of mind called malice aforethought. [¶]
3
There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required for
murder. [¶] [¶] The defendant acted with implied malice if: [¶] 1. He
intentionally committed an act; [¶] 2. The natural consequences of the act
were dangerous to human life; [¶] 3. At the time he acted, he knew his act
was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with
conscious disregard for human life.” The court further instructed the jury
with CALJIC No. 8.30 as follows: “Murder of the second degree is also the
unlawful killing of a human being with malice aforethought when the
perpetrator intended unlawfully to kill a human being but the evidence is
insufficient to prove deliberation and premeditation.”
After deliberating, the jury found defendant guilty of second degree
murder and Lopez guilty of first degree murder. The jury also found the
firearm and gang allegations to be true as to defendant and Lopez. The trial
court sentenced defendant to 40 years to life in state prison.
On direct appeal in 2015, a different panel of this court ordered
defendant’s judgment modified4 but otherwise affirmed his murder
conviction.
III. Petitions for Resentencing
In 2019, defendant filed a petition for resentencing under section
1172.6, which was summarily denied by the trial court. Defendant appealed.
His appointed counsel filed an opening brief raising no issues and asking this
court independently to review the record under People v. Wende (1979) 25
Cal.3d 436. Defendant failed to file a supplemental brief and this court
dismissed the appeal. (People v. Stopani (Oct. 20, 2020, B302980) [nonpub.
Opn.].)
In 2024, defendant filed a second petition for resentencing following
amendments to section 1172.6. The trial court denied the petition, finding
defendant did not establish a prima face showing that the “jury instructions
[] permitted a conviction on the theory of imputed malice.”
4 The trial court was directed to reverse a gang enhancement imposed
under former section 186.22, subdivision (b)(1)(C).
4
Defendant timely appealed.
DISCUSSION
I. Legal Principles and Standard of Review
Senate Bill 1437 took effect on January 1, 2019. (See Stats. 2018, ch.
1015, § 4.) It limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it relates to
murder to ensure a person’s sentence is commensurate with his or her
individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842–
843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).)
The Legislature then passed Senate Bill 775. Among other changes to
the law, the bill eliminated convictions for murder based on a theory under
which malice is imputed to a person based solely on that person’s
participation in a crime. Senate Bill 775 took effect on January 1, 2022. (See
Stats. 2021, ch. 551, § 2.)
As relevant here, individuals convicted of murder under a now-invalid
theory may petition to vacate their convictions and be resentenced. (§ 1172.6,
subd. (a).) If the petitioner makes a prima facie showing of entitlement to
relief, the trial court must issue an order to show cause and hold an
evidentiary hearing. At the hearing, the prosecution bears the burden of
proving beyond a reasonable doubt that the petitioner is guilty of murder
under the amended law. (§ 1172.6, subds. (c), (d)(3).)
“The record of conviction will necessarily inform the trial court’s prima
facie inquiry under section 117[2.6], allowing the court to distinguish
petitions with potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) The jury instructions are part of the record of
conviction, because the instructions “given at a petitioner’s trial may provide
‘readily ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or entitlement
determinations may not amount to ‘factfinding involving the weighing of
evidence or the exercise of discretion,’ ” which may not take place until after
an order to show cause issues. (People v. Soto (2020) 51 Cal.App.5th 1043,
5
1055, abrogated on other grounds in Lewis, supra, 11 Cal.5th 952; see People
v. Estrada (2022) 77 Cal.App.5th 941, 943–944, 946 [jury instructions showed
trial court never instructed the jury on the natural and probable
consequences doctrine; summary denial of petition affirmed].)
“We independently review a trial court’s determination on whether a
petitioner has made a prima facie showing.” (People v. Harden (2022) 81
Cal.App.5th 45, 52.)
II. Analysis
Defendant contends he made a prima facie showing because the record
of conviction does not conclusively rule out the possibility the jury convicted
him under a theory that is no longer valid. Specifically, defendant argues the
instructions allowed the jury to convict him of aiding and abetting under an
imputed malice theory identified in People v. Powell (2021) 63 Cal.App.5th
689 (Powell), People v. Langi (2022) 73 Cal.App.5th 972 (Langi) and People v.
Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado). We disagree.
In Powell, supra, 63 Cal.App.5th 689, a jury convicted the defendant of
second degree murder based on evidence showing he was a member of a
group that beat and stabbed the victim to death. (Id. at p. 692.) On appeal,
the defendant argued the standard CALCRIM instructions allowed the jury
to convict him of aiding and abetting implied malice murder, which he
asserted is an invalid theory. (Id. at p. 709.) The court rejected the
argument that aiding and abetting implied malice murder is an invalid
theory. However, it noted the jury instructions had not been tailored to that
theory of murder. (Id. at p. 714.) The court explained “the aider and abettor
of implied malice murder need not intend the commission of the crime of
murder,” as CALCRIM No. 401 requires. (Powell, supra, at p. 714.) “Rather,
relative to the aider and abettor’s intent, he or she need only intend the
commission of the perpetrator’s act, the natural and probable consequences of
which are dangerous to human life, intentionally aid in the commission of
that act and do so with conscious disregard for human life.”5 (Ibid.) Our
5 The Powell court ultimately concluded the error was harmless because
the prosecutor did not pursue an aiding and abetting implied malice theory,
6
Supreme Court adopted Powell’s summary of the elements of aiding and
abetting an implied malice murder in People v. Reyes (2023) 14 Cal.5th 981
(Reyes).6
Langi applied Powell’s reasoning to a section 1172.6 resentencing
petition. The defendant was a member of a group that beat and robbed the
victim, who ultimately fell, hit his head, and died. (Langi, supra, 73
Cal.App.5th at p. 975.) The defendant argued at trial that he did not throw
the fatal punch. (Id. at p. 977.) The jury was instructed on aiding and
abetting second degree murder and convicted the defendant of robbery,
battery, and second degree murder. (Ibid.) The Court of Appeal assumed the
murder conviction was based on an aiding and abetting theory and concluded
that an ambiguity in the instructions permitted the jury to impute malice to
the defendant based solely on his participation in a crime. (Id. at pp. 980-
981.) The court explained that “under the instructions that were given, the
jury was entitled to conclude that, to be guilty as an aider and abettor of
second degree murder, [the defendant] need only have intended to encourage
the perpetrator’s intentional act – in this case, punching [the victim] –
whether or not [the defendant] intended to aid or encourage [the victim’s]
killing, and whether or not he personally knew of and disregarded the risk of
such a killing. [¶] The instructions should have explained that, to be guilty as
a direct aider and abettor or second degree murder, an accomplice must have
acted with the mental state of implied malice.” (Id. at p. 983.)
Langi was soon followed by Maldonado, supra, 87 Cal.App.5th 1257. In
that case, the defendant was convicted of first degree lying-in-wait murder
and the jury was not instructed on the natural and probable consequences or
felony murder doctrines. (Id. at p. 1259.) The defendant filed a section
there was “compelling evidence” supporting the theories the prosecutor did
pursue, and the instructional error was “ ‘unimportant in relation to
everything else the jury considered.’ ” (Powell, supra, 63 Cal.App.5th at pp.
716–718.)
6 In 2023, the Judicial Council added an instruction on aiding and
abetting implied malice murder, CALCRIM No. 526. The instruction closely
tracks the language in Reyes, supra, 14 Cal.5th 981.
7
1172.6 resentencing petition, arguing that he could have been convicted
under a theory that malice was imputed to him based solely on his
participation in the crime. (Ibid.) The Court of Appeal found the first degree
lying-in-wait murder instructions required only that the perpetrator intended
to make a surprise attack with a purpose of injuring or intimidating the
victim. (Id. at p. 1266; see id. at p. 1267, fn. 6 [jury instructions “set forth no
such” requirement that perpetrator intended to inflict injury likely causing
death].) Given the instructional ambiguity, the court stated that the
defendant’s murder liability could have been due to intending to “ ‘encourage
the perpetrator’s intentional act,” in this case, a surprise attack on the
victim, without personally and knowingly disregarding the risk of a killing.
(Id. at p. 1266.)
The concern identified in Powell, Langi, and Maldonado is not at issue
here. In those cases, the juries were instructed on underlying target offenses
not requiring malice aforethought or a theory of murder not requiring it.
Here, the only offense charged was murder, which required finding the
perpetrator harbored express or implied malice. There is no doubt that the
jury found defendant aided and abetted a life endangering act as opposed to
some lesser act. Because the trial court did not instruct the jury on any other
invalid theories of murder (felony murder or the natural and probable
consequences doctrine), defendant did not make a prima facie showing under
section 1172.6. Accordingly, the trial court properly denied his petition at the
prima facie stage.
8
DISPOSITION
The order denying defendant’s section 1172.6 petition for resentencing
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
MORI, J.
TAMZARIAN, J.
9