Filed 8/19/26 P. v. Cortez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B337410
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XCNBA358040-02)
v.
LUIS ALBERTO CORTEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Renee Korn, Judge. Affirmed.
John P. Dwyer, 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, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Luis Alberto Cortez appeals from
the trial court’s order denying, at the prima facie stage, his third
petition for resentencing under Penal Code section 1172.6.1
Defendant raises two issues on appeal related to CALCRIM
No. 401, the aiding and abetting jury instruction given at his
2010 trial. Defendant contends that CALCRIM No. 401
impermissibly allowed the jury to convict him of murder on a
theory of imputed malice, and because the record of conviction
does not conclusively negate that possibility, the trial court’s
summary denial of his petition was in error. Defendant also
contends his failure to raise this instructional error in his direct
appeal is not a procedural bar to sentencing relief under
section 1172.6.
While this appeal was pending, the Supreme Court issued
its decision in People v. Lopez (2026) 19 Cal.5th 639, 657–659
(Lopez), concluding the text and purpose of section 1172.6 did not
support imposition of a procedural bar to relief to those
defendants who had not challenged the language of CALCRIM
No. 401 on direct appeal. As that issue has been resolved, we do
not discuss it further.
We otherwise conclude the record of conviction conclusively
establishes defendant’s ineligibility for sentencing relief as a
matter of law, and therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant and codefendant Joshua Christopher Jones were
charged with the October 23, 2008 murder of Christian Garcia.
1 All undesignated statutory references are to the Penal
Code.
2
(§ 187, subd. (a).) Gang and firearm use allegations were alleged.
(§§ 186.22, subd. (b), 12022.53, subds. (d) & (e)(1).)
Defendant and Jones were jointly tried before a jury in
August to September of 2010. The jury found Jones guilty of first
degree murder, and found true both the gang allegation and the
firearm use allegation. The jury found defendant guilty of second
degree murder, found true the gang allegation, and found not
true the firearm use allegation.
Defendant was sentenced to 15 years to life. The court
imposed and stayed a 10-year term on the gang enhancement and
awarded defendant 779 days of presentence custody credits.
On direct appeal, the trial court was ordered to strike the gang
enhancements as to both defendants and, in accordance with
section 186.22, impose instead a 15-year minimum parole
eligibility term. Both defendant’s and Jones’s convictions were
otherwise affirmed. (People v. Jones et al. (July 12, 2013,
B230147) [nonpub. opn.].)
After the passage of Senate Bill No. 1437 (Stats. 2018,
ch. 1015, § 4), defendant filed a petition for resentencing under
section 1172.6 (former § 1170.95). The trial court appointed
defendant counsel and received briefing from the parties. In
February 2020, after a hearing, the court denied defendant’s
resentencing petition, finding him ineligible for relief as a matter
of law. Defendant filed a second resentencing petition after the
passage of Senate Bill No. 775 (Stats. 2021, ch. 551, § 2), which
was also denied at the prima facie stage.
In March 2024, defendant filed, in propria persona, his
third petition for resentencing. In his form petition, defendant
once again checked the boxes asserting under oath that he was
charged by an information that allowed the prosecution to
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proceed under a theory of imputed malice, that he was convicted
of murder, and that he could not now be convicted of murder in
light of the amendments to the murder statutes effected by
Senate Bill Nos. 1437 and 775. Defendant requested the
appointment of counsel.
On March 14, 2024, the trial court summarily denied
defendant’s third petition without appointing counsel or
requesting briefing from the parties. The court explained that in
reaching its decision, it relied only on defendant’s petition and
court documents from the record of conviction, including the
felony information, the jury instructions, questions asked by the
jury and answered by the court, and the verdict forms. The court
noted the jury was not instructed with the natural and probable
consequences doctrine. Based on its review of the record, the
court concluded defendant was convicted as a direct aider and
abettor and not under a theory of imputed malice. As with the
prior two petitions, the court concluded defendant had failed to
make a prima facie showing of eligibility for relief.
This appeal followed.
DISCUSSION
Defendant concedes the prosecutor’s theory of the case was
that the shooting of the victim was an intentional murder of a
rival gang member in retaliation for codefendant Jones having
been stabbed a few weeks earlier, and that the prosecutor argued
Jones was the shooter or direct perpetrator and defendant was
the aider and abettor. Defendant contends however that
CALCRIM No. 401 allowed the jury to convict him of murder as
an aider and abettor based on a theory of imputed malice, and
the trial court erred in summarily denying his petition because
the record of conviction does not conclusively negate that
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possibility. Based on our review of the record, we disagree.
(People v. Hickman (2025) 110 Cal.App.5th 1262, 1268 [denial of
resentencing petition at prima face stage reviewed de novo].)
A trial court is justified in summarily denying a petition
under section 1172.6 at the prima facie stage if the documents
from the record of conviction conclusively refute the allegations
made by the defendant in his petition. (People v. Curiel (2023)
15 Cal.5th 433, 460 (Curiel).) In fact, “ ‘the parties can, and
should, use the record of conviction to aid the trial court in
reliably assessing whether a petitioner has made a prima facie
case for relief.’ ” (Id. at p. 464.)
Here, CALCRIM No. 400 told the jury that a person may be
guilty of a crime either by directly committing it as the
perpetrator, or by aiding and abetting the direct perpetrator.
CALCRIM No. 401 instructed the jury, in relevant part, that “[t]o
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 knows of the perpetrator’s unlawful purpose
and he specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of
that crime.”
CALCRIM No. 401 accurately states the law regarding
culpability for aiding and abetting a crime. Defendant does not
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assert otherwise. Rather, he says the instruction is ambiguous
with respect to his conviction for second degree murder.
In recent years, courts acknowledged an ambiguity in the
language of CALCRIM No. 401 when the instruction was not
tailored to the specific facts of the case. (See, e.g., People v. Reyes
(2023) 14 Cal.5th 981, 991 (Reyes); People v. Powell (2021)
63 Cal.App.5th 689, 712–714.) The ambiguity recognized by
these courts typically pertains to second degree murder based on
implied malice. The ambiguity arises because the language of
CALCRIM No. 401, an instruction of general applicability, is
focused on aiding and abetting an underlying crime. (Reyes at
p. 991; accord, Lopez, supra, 19 Cal.5th at pp. 654–655.) But,
with implied malice murder, accomplice liability is premised on
aiding and abetting a life-endangering act.
Reyes explains: “In the context of implied malice, the actus
reus required of the perpetrator is the commission of a life-
endangering act. For the direct aider and abettor, the actus reus
includes whatever acts constitute aiding the commission of the
life-endangering act. Thus, to be liable for an implied malice
murder, the direct aider and abettor must, by words or conduct,
aid the commission of the life-endangering act, not the result of
that act. The mens rea, which must be personally harbored by
the direct aider and abettor, is knowledge that the perpetrator
intended to commit the act, intent to aid the perpetrator in the
commission of the act, knowledge that the act is dangerous to
human life, and acting in conscious disregard for human life.”
(Reyes, supra, 14 Cal.5th at p. 991.) Following the Supreme
Court’s decision in Reyes, the Judicial Council adopted a new jury
instruction, CALCRIM No. 526, setting forth the elements of
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“aiding and abetting implied malice murder.” (CALCRIM
No. 526.)
Defendant relies on this ambiguity in arguing for a reversal
of the trial court’s order and a remand for further proceedings on
his petition. But defendant fails to acknowledge the limited
nature of the ambiguity recognized in CALCRIM No. 401.
Defendant has not cited any case that concludes every defendant
convicted of second degree murder is automatically entitled to an
evidentiary hearing under section 1172.6 simply because his jury
was instructed with CALCRIM No. 401. Indeed, a trial court’s
review of a petition under section 1172.6 remains a case-specific
inquiry informed by the record of conviction. (See, e.g., Curiel,
supra, 15 Cal.5th at p. 441; People v. Antonelli (2025) 17 Cal.5th
719, 731–732.)
The record of conviction here conclusively establishes that
the jury found the murder of Garcia to be an express malice
murder. The information charged defendant and Jones jointly
with only one count of murder. This was not a case arising from
a shooting in the course of another felony. In addition to
CALCRIM Nos. 400 and 401, the jury was instructed on the
definition and principles related to homicide, the degrees of
murder, premeditation, manslaughter, self-defense, and
imperfect self-defense (CALCRIM Nos. 500, 505, 520, 521 & 571).
It is undisputed the jury was not instructed on the natural and
probable consequences doctrine or felony murder.
The jury found codefendant Jones guilty of first degree
murder. The jury therefore necessarily found that Jones acted
with a premeditated intent to kill when he shot the victim.
The jury was tasked with determining whether the evidence also
demonstrated beyond a reasonable doubt that defendant knew of
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Jones’s intent, intended to aid Jones in his purpose, and did in
fact take an act that aided Jones in committing murder.
(CALCRIM No. 401 [“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”].) The jury answered that question in the affirmative by
finding defendant guilty of murder.
Curiel instructs that the “essence of aiding and abetting is
involvement in the crime of another. The aider and abettor must
become ‘concerned’ with the crime itself. (§ 31.) ‘[A] person
“chooses to become a part of the criminal activity of another” ’
and ‘ “says in essence, ‘your acts are my acts.’ ” ’ ” (Curiel, supra,
15 Cal.5th at p. 468.) Put another way, it is the “mental
relationship to the perpetrator’s acts that confers liability on the
aider and abettor.” (Ibid.) The jury’s verdicts, viewed in light of
the jury instructions, conclusively demonstrate that the jury
found defendant knowingly involved himself in and assisted the
murder committed by Jones—a valid theory of culpability under
the current murder statutes that is not based on imputed malice.
There is nothing in the record to support the possibility the jury
convicted defendant on a theory of imputed malice. The order
denying defendant sentencing relief is therefore properly
affirmed.
Finally, the People point out that the trial court failed to
appoint counsel or request briefing on defendant’s third petition,
but any error was harmless. (People v. Lewis (2021) 11 Cal.5th
952, 970–971 [trial court must appoint counsel and allow briefing
upon the filing of a facially sufficient petition].) Defendant did
not raise this as a contention and the issue is therefore forfeited.
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In any event, the error was indeed harmless. (Lewis, at p. 973
[failure to appoint counsel and allow briefing is state law error
only].) To establish prejudice, defendant would have had to
demonstrate that it is reasonably probable that if he had been
afforded counsel, his petition would not have been summarily
denied at the prima facie stage. (Id. at p. 974.) Given our
discussion above, defendant could not do so, even if he had
asserted the error.
DISPOSITION
The March 14, 2024 order denying defendant’s third
petition for resentencing under section 1172.6 is affirmed.
VIRAMONTES, J.
WE CONCUR:
WILEY, Acting P. J.
SCHERB, J.
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