Filed 6/18/26 P. v. Landeros CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B346992
(Super. Ct. No. 2008039700)
Plaintiff and Respondent, (Ventura County)

v.

DAVID LANDEROS,

Defendant and Appellant.

In January 2010, David Landeros was convicted, by
jury, of two counts of first degree murder and sentenced to two
consecutive terms of life without the possibility of parole. We
affirmed his convictions in People v. Landeros (Aug. 8, 2011,
B223446) [non.pub.] (Landeros). Landeros filed a petition for
resentencing under Penal Code section 1172.6.1 After appointing
counsel to represent appellant, the trial court denied his petition
at the prima facie stage. It concluded he is ineligible for

All statutory references are to the Penal Code unless
1

otherwise stated.
resentencing as a matter of law because the record of his
conviction establishes that he directly aided and abetted the
murders and acted with the intent to kill. Appellant contends the
trial court erred because the jury could have found him guilty of
second degree murder on a natural and probable consequences
theory and then elevated the offense to first degree murder based
on other, erroneous instructions. We affirm.
Facts and Procedural History
The following statement of facts is derived from the
record of appellant’s conviction, including the trial transcript,
jury instructions and our opinion in appellant’s prior appeal,
Landeros, supra, B223446. (People v. Curiel (2023) 15 Cal.5th
433, 460 (Curiel); People v. Lopez (2022) 78 Cal.App.5th 1, 13-14
(Lopez).)
Appellant and Cesar Navarette had known each
other and been neighbors in the Lemonwood neighborhood of
Oxnard since childhood. In 2005, appellant cooperated with
police against Navarette’s brother in a murder investigation.
Navarette learned of appellant’s cooperation in 2008 and told
others in the neighborhood about it. Several weeks before the
murder, a shot was fired from a house where appellant was
present toward a group in which Navarette was present.
On the night of this murder, appellant and two of his
friends went to a nearby bar for drinks. Appellant drove the
group in his SUV. On the way back to their neighborhood, the
group stopped at a Jack-in-the-Box where they saw Navarette in
his pickup truck. Luis Ruiz arrived and got into Navarette’s
truck. Navarette drove back toward Lemonwood with appellant
following.

2
 Appellant chased Navarette’s truck through the
neighborhood. At one point, Navarette and Ruiz threw a bottle
and a rock at appellant’s SUV. After appellant’s SUV was hit by
an object, he stopped to check for damage before driving away.
Appellant called someone on his cell phone. One of
appellant’s passengers told an investigating police officer that he
heard appellant say something like, “Come do me a favor.”
Shortly thereafter, appellant drove up to a small car. A man got
out of the car carrying a shotgun and wearing a handkerchief
over his face. The man got into the back seat of the SUV ending
up on the passenger side.
Appellant drove back to where they had last seen
Navarette, which was Ruiz’s house. By that time, Ruiz had come
out of the house to the front patio. His mother followed him,
pleading with him to come back inside. Appellant drove slowly
past the house. One of his passengers heard appellant say,
“ ‘There he is, shoot,’ ” or words to that effect. The SUV’s rear
window went down and the man with the shotgun fired toward
Ruiz’s house. That shot hit both Ruiz and his mother who was
standing directly behind him. Both victims perished.
The prosecution’s theory of the case was that
appellant and the gunman planned to kill Navarette, to stop him
from disrespecting appellant. The gunman shot the wrong
person, Ruiz, and his mother was caught in the blast. Defense
counsel argued the shooter acted independently.
The Jury Instructions. The trial court instructed the
jury on aiding and abetting (CALCRIM Nos. 400, 401), murder
with express or implied malice aforethought (CALCRIM No. 520),
first and second degree murder (CALCRIM No. 521), transferred
intent (CALCRIM No. 562), murder on a natural and probable

3
consequences theory (CALCRIM No. 403) and assault with a
deadly weapon. (CALCRIM No. 875). The jury was also
instructed on the special circumstance of multiple murders.
(CALCRIM Nos. 702, 704, 705 and 721.)
CALCRIM No. 401 informed the jury that, “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.”
CALCRIM No. 520 informed the jury that, to prove
appellant guilty of murder, “the People must prove that: 1. The
defendant aided and abetted the commission of an act that
caused the death of another person; AND 2. When the defendant
acted, he had a state of mind called malice aforethought; AND 3.
The killing was without lawful excuse or justification.” It further
informed the jury that the two kinds of “malice aforethought” are
express malice and implied malice. “Proof of either is sufficient to
establish the state of mind required for murder. A person acts
with express malice if he unlawfully intended to kill. A person
acts with implied malice if: 1. He intentionally committed an act;
2. The natural and probable 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.”
A separate instruction addressed the doctrine of
transferred intent. It informed the jury, “If the defendant

4
intended to kill one person, but by mistake or accident killed
someone else instead, then the crime, if any, is the same as if the
intended person had been killed.” (CALCRIM No. 562.)
To instruct the jury on the distinction between first
and second degree murder, the trial court modified CALCRIM
No. 521 to define willfulness, premeditation and deliberation by
reference to the gunman’s state of mind, rather than appellants.
It informed the jury that murder is either of the first or second
degree. “It is first degree murder if the People have proved that
the gunman acted willfully, deliberately, and with premeditation.
The gunman acted willfully if he intended to kill. The gunman
acted deliberately if he carefully weighed the considerations for
and against his choice and, knowing the consequences, decided to
kill. The gunman acted with premeditation if he decided to kill
before committing the act that caused death. . . . All other
murders are of the second degree.”
CALCRIM No. 403 instructed the jury on the now
invalid natural and probable consequences theory. The jury was
informed, “If you do not find that the shooter unlawfully intended
to kill Cesar Navarette with express malice, you may decide that
an unlawful killing occurred with implied malice as defined in
the earlier instruction. To prove the defendant is guilty of aiding
and abetting second degree murder based on implied malice, the
People must prove that: 1. The defendant is guilty of aiding and
abetting an assault with a firearm; 2. During the commission of
the assault with a firearm, the gunman committed an unlawful
killing; AND 3. Under all of the circumstances, a reasonable
person in the defendant’s position would have known that an
unlawful killing was a natural and probable consequence of the

5
commission of the assault with a firearm.” CALCRIM No. 875
defined the elements of assault with a firearm.
Finally, the jury was instructed on the special
circumstance of multiple murders. The trial court informed the
jury that, if it found that appellant was guilty of first degree
murder “but was not the actual killer, then, when you consider
the special circumstances of multiple murder, you must also
decide whether the defendant acted with the intent to kill. [¶] In
order to prove these special circumstances for a defendant who is
not the actual killer but who is guilty of first degree murder as an
aider and abettor, the People must prove that the defendant
acted with the intent to kill.” The jury was further informed
that, “If the defendant was not the actual killer, then the People
have the burden of proving beyond a reasonable doubt that he
acted with the intent to kill for the special circumstances of
multiple murder to be true.” (CALCRIM No. 702.)
During deliberations, the jury asked, “For a first
degree murder charge does there have to be “express malice,” or
can it be either “express” or “implied.” Likewise, if you find there
is “express” malice, does that automatically mean it’s first degree
and not second degree. We need clarification.” The trial court
responded, “1. For [first] degree murder, it may be express or
implied malice. 2. No. For the degree of murder please see
instruction 521 at page 36.”
Verdict and Sentence. The jury convicted appellant
of the first degree murder of both Luis Ruiz and his mother, Rosa
Ruiz. It also found the special circumstances of multiple murders
to be true with respect to both victims. The trial court sentenced
appellant to life without the possibility of parole.

6
 Direct Appeal. We affirmed appellant’s conviction in
an unpublished opinion. (Landeros, supra, B223446.) We agreed
the trial court erred when it instructed the jury that it should
consider the gunman’s state of mind, rather than appellants,
when determining the degree of murder. We concluded, however,
that the error was harmless beyond a reasonable doubt because
the jury necessarily determined that appellant acted with intent
to kill, premeditation and deliberation, under other instructions.
First, the special circumstances instruction (CALCRIM No. 702)
required the jury to find appellant personally “acted with the
intent to kill.” Second, we concluded the jury necessarily found
appellant acted with premeditation and deliberation under the
aiding and abetting instruction. (CALCRIM No. 401.)
The Petition for Resentencing. Appellant contended
in the trial court that he had alleged a prima facie case for relief
under section 1172.6. He theorized that the jury might have
found that appellant and the gunman shared an intent to kill
Navarette but the gunman later independently formed the intent
to commit an assault with a firearm, which intent was not shared
by appellant. Under that circumstance, the jury could have
imputed the gunman’s intent to appellant and convicted him of
murder based on the natural and probable consequences of the
assault.
The trial court rejected this contention. It reasoned
that the jury necessarily found appellant directly aided and
abetted the murder with malice aforethought because it found
appellant guilty of first degree murder and found true the
multiple murder special circumstance.

7
 Discussion
Appellant contends the trial court erred in denying
his petition for resentencing at the prima facie stage because the
jury might have found him guilty of murder on a natural and
probable consequences theory and then elevated the offense to
first degree murder based on the trial court’s erroneous
modification of CALCRIM No. 521. We review the trial court’s
order de novo and affirm. (People v. Lovejoy (2024) 101
Cal.App.5th 860, 865.) We conclude that the record of conviction
demonstrates the jury necessarily found that appellant had the
intent to kill and that he acted willfully, deliberately and with
premeditation. Consequently, the trial court correctly concluded
appellant is ineligible for relief as a matter of law. Nothing in the
recent opinion in People v. Lopez (2026) 19 Cal.5th 639, alters our
analysis.
Effective in 2019, Senate Bill 1437 (2017-2018
Reg.Sess.) altered California’s substantive law of murder by
narrowing the felony murder rule and by eliminating liability for
murder under the natural and probable consequences doctrine.
(Curiel, supra, 15 Cal.5th at pp. 448-449.) Section 188,
subdivision (a), defining the mental state required for murder,
now provides that, except in cases of felony murder as stated 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).) This statutory
change eliminates the natural and probable consequences
doctrine as a theory of liability for murder. “[U]nder prior law, a
defendant who aided and abetted an intended assault could be
liable for murder, if the murder was the natural and probable

8
consequence of the intended assault. [Citation.] The defendant
need not have intended to 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, at p. 449.)
Section 1172.6 allows a person convicted of felony
murder or murder under the natural and probable consequences
theory to petition to have their conviction vacated and be
resentenced when, among other conditions, “The petitioner could
not presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019.” (Id., subd.
(a)(3).) The first step in this process is for the convicted person to
file a petition declaring that he or she meets all of the
requirements for relief under the statute. It is then the trial
court’s responsibility to determine whether the petition states a
prima facie case for relief. (Id., subd. (c).)
At the prima facie stage, the question is whether the
petition and record of conviction “establish conclusively that the
defendant is ineligible for relief . . . .” (People v. Strong (2022) 13
Cal.5th 698, 708 (Strong).) If so, the trial court may dismiss the
petition without issuing an order to show cause. (Curiel, supra,
15 Cal.5th at p. 450.) “While the trial court generally should not
reject a petitioner’s factual allegations at the prima facie stage,
‘ “if the record, including the court’s own documents, ‘contain[s]
facts refuting the allegations made in the petition,’ then ‘the
court is justified in making a credibility determination adverse to
the petitioner.” ’ [Citation.] ‘In reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not
engage in “factfinding involving the weighing of evidence or the
exercise of discretion.” ’ [Citation.]” (People v. Morales (2024)

9
102 Cal.App.5th 1120, 1130.) The record of conviction includes
the statement of facts in an appellate opinion, “the trial evidence,
the jury instructions, and closing arguments of counsel.
[Citation.]” (Lopez, supra, 78 Cal.App.5th at pp. 13-14.)
A person is ineligible for relief under section 1172.6
as a matter of law where the record of conviction establishes that
he or she was convicted of murder on a theory that remains valid
after the 2019 changes to sections 188 and 189. (§ 1172.6, subd.
(a)(3); Strong, supra, 13 Cal.5th at p. 708.) Direct aiding and
abetting remains a valid theory of liability for murder. (Curiel,
supra, 15 Cal.5th at p. 462; § 189, subd. (e)(2).) Transferred
intent also remains valid. (People v. Nguyen (2024) 103
Cal.App.5th 668, 673.)
Appellant contends he stated a prima facie case for
relief because the jury could have found him guilty of first degree
murder under the now invalid natural and probable
consequences doctrine by applying CALCRIM No. 403 and the
trial court’s erroneously modified CALCRIM No. 521. In this
scenario, the jury would have found that appellant did not
“unlawfully intend[] to kill Cesar Navarette with express malice,”
but that the killing occurred “with implied malice . . . .”
(CALCRIM No. 403.) It would then have found “the defendant is
guilty of aiding and abetting second degree murder based on
implied malice” because he aided and abetted the gunman’s
assault with a firearm and the victims’ deaths were the natural
and probable consequence of that assault. (Ibid.) Appellant
theorizes the jury could then have “elevated” the offense from
second degree to first degree murder by applying CALCRIM No.
521 to find the perpetrator “acted willfully, deliberately, and with
premeditation” when he committed the assault. (CALCRIM No.

10
521.) If this occurred, the jury would have imputed the
perpetrator’s mental state to appellant and convicted appellant of
first degree murder based on that mental state.
But this theory cannot be squared with the jury
instructions and the jury’s actual verdicts. The jury found
appellant guilty of first degree murder and found the multiple
murder special circumstances allegations to be true. To reach
these verdicts, the jury could not have relied on the natural and
probable consequences doctrine described in CALCRIM No. 403
because that instruction was expressly limited to second degree
murder.2 Nothing in the instructions permits the jury to find
appellant guilty of second degree murder and then “elevate” the
offense to first degree murder by finding that either appellant or
the perpetrator acted with a different mental state. If the jury
had concluded, as appellant theorizes, that the perpetrator
intended only to commit an assault with a firearm, the
erroneously modified CALCRIM No. 521 required it to find that a
second degree murder occurred. Appellant would then have
aided and abetted a second degree murder. In that circumstance,
the perpetrator would not have acted “willfully,” as required for

2 As relevant here, the instruction states, “To prove that the
defendant is guilty of aiding and abetting second degree murder
based on implied malice, the People must prove that: 1. The
defendant is guilty of aiding and abetting an assault with a
firearm; 2. During the commission of the assault with a firearm,
the gunman committed an unlawful killing; AND 3. Under all of
the circumstances, a reasonable person in the defendant’s
position would have known that an unlawful killing was a
natural and probable consequence of the commission of the
assault with a firearm.” (CALCRIM No. 403, emphasis added.)

11
first degree murder, because he would have acted with the intent
to commit an assault, not with the intent to kill.
Moreover, to find the special circumstances
allegations true, the jury had to find that appellant, not the
shooter, “acted with the intent to kill.”3 (CALCRIM No. 702.)
“Although malice may include concepts that are not included in
willfulness, willfulness does not include any concept that is not
contained in express malice. An intent to kill is the ‘ “functional
equivalent” ’ of express malice.” (People v. Moon (2005) 37 Cal.4th
1, 29.) When it found the special circumstances allegations true,
the jury necessarily found that appellant acted willfully.
In addition, the jury was instructed that, to find
appellant guilty as an aider and abettor, it had to find he “knew
that the perpetrator intended to commit the crime;” and he
“intended to aid and abet the perpetrator in committing the crime
. . . .” (CALCRIM No. 401.) It was further instructed that aiding
and abetting occurs when the defendant “knows of the
perpetrator’s unlawful purpose and he specifically intends to, and
does in fact, aid . . . the perpetrator’s commission of that crime.”
This is the equivalent of a finding that appellant acted with
premeditation and deliberation. “It would be virtually impossible
for a person to know of another’s intent to murder and decide to
aid in accomplishing the crime without at least a brief period of
deliberation and premeditation, which is all that is required.”
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166; see also
People v. Lee (2003) 31 Cal.4th 613, 624 [aider and abettor to

3The special circumstances instruction also states, “[t]he
People do not have to prove that the actual killer acted with the
intent to kill in order for these special circumstances to be true.”
(CALCRIM No. 702.)

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attempted murder necessarily harbors mental state “at least
approaching deliberation and premeditation . . .”].)
We note that nothing in the prosecutor’s closing
arguments encouraged the jury to rely on the natural and
probable consequences doctrine or to find that appellant aided
and abetted a crime other than murder. Instead, the prosecutor
argued, “I don’t think you ever get to second-degree natural and
probable consequences murder because I don’t think you will get
past first-degree willful, deliberate, and premeditated murder.”
“The defendant had knowledge and intent to kill Cesar Navarrete
. . . . He caused this shooting to happen. It would not have
happened but for his help, but for his conduct, but for the
defendant calling the shooter to come to the scene, but for the
defendant picking up the shooter, and but for the defendant
driving the shooter past the place where Cesar Navarette was
last seen. [¶] . . . All of those facts indicate deliberation and
premeditation.”
Appellant contends it is possible he was convicted on
an implied malice natural and probable consequences theory
because, in response to a question, the trial court informed the
jury that either express or implied malice would suffice for first
degree murder. Like his previous argument, however, this
contention ignores the jury’s actual findings. When it found the
multiple murder special circumstances allegations true, the jury
found that appellant acted with the intent to kill. This finding
necessarily means the jury did not apply CALCRIM No. 403, the
natural and probable consequences instruction. That instruction
begins by stating, “If you do not find that the shooter unlawfully
intended to kill Cesar Navarette with express malice, you may
decide that an unlawful killing occurred with implied malice as

13
defined in the earlier instruction.” (Ibid., emphasis added.) Had
the jury found appellant did not act with express malice, it would
have found the special circumstances untrue.
Conclusion
The record of appellant’s conviction establishes as a
matter of law that he is ineligible for relief under section 1172.6
because the jury necessarily found that he personally acted with
malice aforethought. (§§ 188, subd. (a)(3), 1172.6, subd. (a)(3);
Curiel, supra, 15 Cal.5th at p. 450.)
The order denying appellant’s petition for
resentencing pursuant to section 1172.6 is affirmed.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

BALTODANO, J.

CODY, J.

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 Derek D. Malan, Judge

Superior Court County of Ventura

______________________________

Claudia Y. Bautista, Public Defender, William Quest,
Snr. Dep. Public Defender, for Defendant and Appellant.
Rob Bonta, Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Kristen J. Inberg,
Supervising Deputy Attorney General, Megan Moine, Caitlin
Ross, Deputy Attorneys General, for Plaintiff and Respondent.