Opinion
F085147
11-09-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL DUARTE-RODRIGUEZ, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. 192420 Ricardo Cordova, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Defendant and appellant Jose Manuel Duarte-Rodriguez appeals from the trial court's denial of his petition to vacate his murder conviction and for resentencing under Penal Code section 1172.6 (formerly section 1170.95). He argues the trial court erred in denying his petition without issuing an order to show cause and conducting an evidentiary hearing. Defendant contends he established a prima facie case for resentencing by alleging the jury could have been misled by the jury instructions regarding aiding and abetting, leaving open the possibility defendant was convicted under an improper theory of imputed malice. We find no error and affirm the order.
All statutory references are to the Penal Code unless indicated otherwise.
Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6. (Assem. Bill No. 200 (2021-2022 Reg. Sess.) (Assembly Bill 200).) We refer to the statute herein by its present section number.
FACTUAL BACKGROUND
I. Original First Degree Murder Conviction
Defendant was convicted in March 2007 for first degree premeditated murder as a direct aider and abettor of the perpetrator who shot the victim to death.
Defendant filed an unopposed request for judicial notice of the record on appeal in case No. F081100, which related to his first petition for relief under section 1172.6. The People also filed a request for judicial notice of the record on appeal in case No. F053069, the direct appeal of defendant's conviction. Defendant filed a statement of limited opposition to this request, noting that while many of the records are subject to judicial notice (such as documents related to the procedural history of the case, the jury instructions, the closing arguments of counsel and this court's opinion affirming the conviction), the evidence admitted at trial is not admissible or relevant to determining whether defendant has made a prima facie showing of entitlement to relief under section 1172.6. The records on appeal in cases Nos. F081100 and F053069 are subject to judicial notice as records of a court in this state. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); People v. Moore (1997) 59 Cal.App.4th 168, 178.) However, the truth of facts asserted in every document in a court record is not subject to judicial notice. (Moore, supra, at p. 178.) While a court may take judicial notice of records establishing things such as the fact a ruling was made, that an argument was presented, or that a document was filed, the court may not take judicial notice of the truth of a factual finding made in another action. (Ibid.) Both parties' requests for judicial notice are granted, but the truth of factual findings or of disputable facts contained in those records is not judicially noticed. Moreover, as defendant notes, weighing evidence or exercising discretion is not permitted at the prima facie stage, and the court records are not judicially noticed for that purpose. (People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).)
A. Factual Background
To provide factual context for defendant's arguments under section 1172.6, the fact summary set forth in this court's opinion on defendant's direct appeal is set out below. (People v. Duarte-Rodriguez (May 28, 2008, F053069) [nonpub. opn.].)
In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (Id., subd. (d)(3); accord, People v. Flores (2022) 76 Cal.App.5th 974, 988; People v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in factfinding at the prima facie stage. (People v. Flores, supra, at p. 988; People v. Clements, supra, at p. 292; Lewis, supra, 11 Cal.5th at p. 972.) The following factual and procedural summary is from the records we have judicially noticed. We restate the factual statement from the prior appeal to provide context for the trial court's ruling and the parties' appellate arguments, and do not rely on the factual statement to resolve the issues presented in this appeal. (§ 1172.6, subd. (d)(3).)
"Manuel Arciga Orneles was killed in Brennan Park in Oakdale in June 1998. Dr. Robert Lawrence, a pathologist employed by the office of the Stanislaus County Coroner, testified that he reviewed a report of an autopsy performed June 15, 1998, on Manuel Arciga Orneles, and that the report indicated the deceased died of '[m]ultiple gunshot wounds, particularly of the head.'
"On June 14, 1998 (June 14), [J.G.] saw a man (the victim) shot and killed in a park in Oakdale. On that date, [J.G.] was hosting a birthday party for his three-year-old son, and at one point, the party moved to the park across the street from [J.G.]'s house. In the park, [J.G.] observed a group of four or five people, one of whom was [defendant]. They were 'drinking,' and '[o]ne of the guys' was 'arguing.' The argument was about 'money or something' and had 'something to do with' a bicycle. One of the men, not [defendant], was 'asking [the victim] for the money for the bike.'
"At one point, the man arguing with the victim said 'that he would be back in ten minutes and that if he saw him there, he was going to kill him.' In response, the victim 'was laughing.'
"Thereafter, [defendant] and another person left the park in a van. Less than 15 minutes later, the two persons returned in the same van. By this time, [J.G.] had returned to his house and was in his front yard, 'cutting the cake [when he] heard some shots.' He 'looked out front' and saw 'the man who was shooting' walking toward the victim. The shooter 'seem[ed] to have come from the passenger's side of the van.' [J.G.] did not see 'the first three shots,' but he 'did see when [the shooter] approached the guy and fired into his head.' After the shooting, the two men left in the van.
"[J.G.] did not recall if [defendant] was the man who did the shooting, but at the preliminary hearing [J.G.] testified [defendant] was not the shooter.
"[C.A.] testified to the following. She attended the birthday party in the park on June 14. After the children finished hitting the pinata, the party moved back to [J.G.]'s house. At some point thereafter, she saw three men in the park. Two of them were arguing 'over $25.' One of these men 'took the bike because he wanted his $25'; put the bicycle in a van; and 'said he was going to come back, and if he didn't have his $25 that he was going to shoot the SOB.' The van then drove off.
"[C.A.] further testified to the following. She was watching television in [J.G.]'s house when, approximately 10 minutes later, the van returned and [C.A.] heard multiple gunshots. [C.A.] looked out the window and saw the same man who had been arguing and who had left in the van 'walking ... towards two guys sitting out there, just walking and shooting.' The man doing the shooting was 'walking as if he had came out of the van, walking towards [the victim].' [C.A.]'s view was of the man's back; she could not see his face. After the man was 'done shooting,' he got into the van on the passenger's side and the van drove off.
"[M.C.] testified to the following. On the afternoon of June 14, he was at a park in Oakdale 'talking and drinking' with some men, including [defendant], Enrique Lopez and 'Manuel Ventura,' who was also known as 'Arciga.' At some point, [defendant] and Arciga were arguing about 'something to do with a debt.' Lopez 'butted into the conversation,' became 'furious' and told Arciga that Arciga 'should get something' because he (Lopez) 'was going to get something.' [M.C.] understood Lopez's statement as a threat. [Defendant] was 'close by' at the time Lopez made this threat.
"[M.C.] further testified to the following. After Lopez threatened Arciga, [defendant] and Lopez left the park '[i]n the van.' The van later returned, at which point Lopez, with a gun in his hand, got out of the van, approached Arciga, told [M.C.] to 'stand aside' and 'started to shoot....' As Lopez approached further, [M.C.] heard more shots. [M.C.] did not know if [defendant] was in the van at this time.
"[C.A.] testified that her nephew, [C.N.], who was approximately 12 or 13 years old on June 18, was in the park that day, 'right there ... behind the men that were drinking,' and when the shooting started, he grabbed [C.A.]'s niece and ran. [C.N.] testified to the following. At the time of the trial, he was 22 years old, and serving time in prison. In approximately 1998, he attended a child's birthday party in Oakdale.
"However, in response to several subsequent questions, [C.N.] stated he was 'blackin' out.' He testified that when prison inmates testify '[t]hey get hurt.' Eventually, he refused to answer questions, stating 'I can't do this no more.'
"Thereafter, an audio tape of a statement [C.N.] gave to Detective Joe Carrillo of the Oakdale Police Department on January 30, 2007, was played for the jury. A transcript of that tape, made part of the record on appeal, indicates [C.N.] told the detective the following. When [C.N.] was approximately 13 years old, he was at a child's birthday party at a house across the street from a park in Oakdale when he '[saw this] dude park with this van,' after which 'these guys [were] arguing over some money.'
"The argument was 'over twenty dollars.' One of the men, 'the shooter,' who was outside the van, said to another man, who was also outside the van, '"you owe me" in Spanish.' The driver of the van remained in the van and was 'arguing out the window.'
"The argument continued, until the man who claimed he was owed money 'said he was gonna kill him,' i.e., the man with whom he had been arguing. He then 'got back in the van,' and the van drove off.
"Approximately 20 minutes later, the van returned. It 'pulled up real fast.' The driver remained in the vehicle, but the other man, who previously had been outside the van arguing, got out of the van, and 'said did you think [I was] playin[g] motherfucker' and '[t]hen ... he shot [the man with whom he had been arguing] two [or] three times.' The shooter used a handgun; it 'looked pretty big.'
"After the shooting, the shooter got back in the van, and he and the driver 'took off' in the van.
"Oakdale Police Officer Vernon Gladney testified to the following. In the course of his investigation of the shooting at the park on June 14, he made contact with [J.G.]. [J.G.] told the officer that earlier that evening 'several men' who had been 'drinking beer,' were arguing 'about some kind of a debt,' and that 'a short time later' two of these men returned in a maroon van, at which point one of the men 'got out of the van and shot the victim.' Shortly thereafter, Officer Gladney found a van meeting the description provided by [J.G.], parked approximately one quarter mile from the park.
"Detective Carrillo testified to the following. The van was eventually taken to the police department, where it was searched. Inside the van, police found a bicycle and some insurance 'paperwork addressed to Jose Duarte.' The van was registered to [defendant's] sister.
"The prosecution also presented testimony that [defendant's] fingerprints were found in the van." (People v. Duarte-Rodriguez (May 28, 2008, F053069), fns. omitted [nonpub. opn.].)
B. Procedural Background
On March 21, 2007, an amended information was filed in the Stanislaus Superior Court charging defendant with the murder of Manuel Arciga Orneles. An enhancement alleged that defendant had knowledge of another person being personally armed with a firearm within the meaning of section 12022, subdivision (d). The amended information also included prior conviction allegations for rape in concert (§ 264.1) and kidnapping (§ 207).
A jury trial was held in March 2007, and defendant was tried by himself. The prosecutor pursued a conviction for murder solely under a direct aiding and abetting theory.
Defendant was convicted of first degree premeditated murder; the jury also found true the special allegation that defendant knew that another principal in the commission of the offense was personally armed with a firearm within the meaning of section 12022, subdivision (d); and, in a bifurcated proceeding, the court found true allegations that defendant had suffered two prior strikes and one prior serious felony conviction under section 667, subdivision (a). Defendant was sentenced to 81 years to life, consisting of 75 years to life for the first degree murder, five years for the prior serious felony conviction enhancement, and one year for the firearm enhancement. On appeal, the judgment was affirmed.
In December 2018, defendant filed a form petition seeking resentencing under section 1172.6 (former § 1170.95). After defendant was appointed counsel and the matter was briefed, the trial court denied the petition. Defendant appealed, and on April 23, 2021, this court affirmed denial of the petition. (People v. Duarte-Rodriguez (Apr. 23, 2021, F081100) [nonpub. opn.].)
In January 2022, defendant filed another form petition again seeking resentencing under section 1172.6. The trial court appointed counsel for defendant, requested briefing from the parties, and ordered a hearing regarding whether defendant had made a prima facie case for resentencing. The People argued defendant's prior petition had been denied and nothing under subsequently enacted Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill 775) impacted defendant's murder conviction; thus, the People argued, defendant's second petition was barred by the doctrine of collateral estoppel. Moreover, because defendant was convicted of first degree murder as a direct aider and abettor, and the jury was not instructed on the natural and probable consequences doctrine or felony murder, defendant was not convicted under a theory of imputed malice.
On August 22, 2022, a hearing was held. Defendant's counsel argued Senate Bill 775 amended the law to clarify that a defendant could not be convicted of murder under any theory of imputed malice, and thus the second petition was not barred by collateral estoppel. The trial court concluded it could reach the issue without deciding the question of collateral estoppel. The court indicated it had reviewed the opposition filed, the jury instructions and the jury's verdict. Based on these records, the court noted the jury had not been instructed on the natural and probable consequences doctrine. The court concluded defendant was convicted solely under a theory of direct aiding and abetting and noted the jury had also found true the allegation that defendant knew the perpetrator had a firearm. The trial court denied defendant's resentencing petition, and this appeal followed.
DISCUSSION
I. Senate Bill No. 1437 and Senate Bill 775
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437).
Effective January 1, 2019, the Legislature passed Senate Bill 1437, which "eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule." (Lewis, supra, 11 Cal.5th at p. 957.) Senate Bill 1437 added three separate provisions to the Penal Code.
"First, to amend the felony-murder rule, Senate Bill 1437 added section 189, subdivision (e): 'A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.' ...
"Second, to amend the natural and probable consequences doctrine, Senate Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): 'Except [for felonymurder liability] as stated in subdivision (e) of Section 189, 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.'
"Third, Senate Bill 1437 added [former] section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above." (People v. Gentile (2020) 10 Cal.5th 830, 842-843, abrogated by statute on another ground as recognized People v. Wilson (2023) 14 Cal.5th 839, 869.) Under this section, "the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met ([§ 1172.6], subd. (b)(1)(A)), including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 (§ 1172.6, subd. (a)(3))." (People v. Strong (2022) 13 Cal.5th 698, 708.)
Effective January 1, 2022, the Legislature passed Senate Bill 775, which "expanded the scope of those changes to encompass, among other things, murder convictions 'under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime.'" (People v. Langi (2022) 73 Cal.App.5th 972, 978.) Assembly Bill 200 subsequently renumbered section 1170.95 to section 1172.6, effective June 30, 2022.
II. Section 1172.6
To seek relief under section 1172.6, a petitioner must file a petition in the superior court averring that: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder[; and] [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (a)(1)-(3); see id., subd. (b)(1)(A).) Additionally, the petition must indicate "Whether the petitioner requests the appointment of counsel." (Id., subd. (b)(1)(C).)
If a petition fails to comply with these requirements, "the court may deny the petition without prejudice to the filing of another petition." (§ 1172.6, subd. (b)(2).) If the petition complies with subdivision (b)'s requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made "a prima facie showing" for relief. (Id., subd. (c).)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id., subd. (c).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)
If an order to show cause is issued, "the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. ..." (§ 1172.6, subd. (d)(1).)
"At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens...." (§ 1172.6, subd. (d)(3).)
III. Standard of Review
In this case, the trial court denied defendant's petition at the prima facie stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is solely a legal conclusion, which we review de novo. (See id. at p. 961.)
IV. Defendant Was Ineligible For Relief Under Section 1172.6
Defendant argues the jury instructions and the prosecutor's closing argument may have confused the jury and caused them to convict him of first degree murder under an impermissible theory of imputed malice. Given that possibility, defendant maintains his petition made a prima facie showing he is eligible for resentencing, and an evidentiary hearing should have been held.
A. Additional Background
In urging the jury to convict defendant of murder, the prosecutor relied solely on a theory of direct aiding and abetting: that defendant had directly aided and abetted Lopez, including by driving Lopez to get a gun and enabling Lopez to shoot and kill the victim.
The jury was instructed on direct aiding and abetting under CALCRIM former No. 400: "A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime or, two, he or she may have aided and abetted someone else who committed the crime. In these instructions, I will call that other person the perpetrator. A person is equally guilty of the crime whether or not he or she committed it personally or aided and abetted the perpetrator who committed it."
The jury was also instructed on CALCRIM No. 401, which pertained to aiding and abetting specific intent crimes:
"To prove the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that, first, the perpetrator committed the crime; second, the defendant knew that the perpetrator intended to commit the crime; third, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; and fourth, 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. If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact a person is present at the scene of a crime or fails to prevent the crime does not by itself make him or her an aider and abettor."
During closing arguments, the prosecutor argued he had "told [the jury] right from the beginning Enrique Lopez was the shooter in this case. And at the close of my evidence, what I said was, at the end of this case I'd come back and then have the opportunity to either argue to you why the defendant right here, Jose Manual Duarte, is guilty also of the crime of murder, whether or not he is the shooter. [¶] Part of the instruction you get is aiding and abetting. People can be guilty of crimes in two ways: He or she may have directly committed the crime, or he or she may have aided and abetted someone else who committed the crime. [¶] A person is equally guilty of the crime whether or not he or she committed it personally or aided and abetted the perpetrator who committed it. And the whole reason for that-I mean, think about it, it makes sense. You imagine in a robbery case, 'Hey, look-someone says, 'I'm not going in the bank, man. I ain't going in to do the robbery. I'm not a robber.' [¶] And the robber says, 'Well, I need a ride.' [¶] And the other person says, 'Well, okay, I will give you a ride to the bank to do the robbery, but when you get in there, I'm not going in there.' [¶] 'Well, once I do the robbery, I'm going to need a ride a way.' [¶] And the driver said-the get-away driver said, 'Well, okay, but I'm not going to do the robbery.' [¶] Does that make sense? Our society basically says the get-away driver is guilty of robbery. He knows the unlawful purpose of the person who's going to the bank to rob the bank and he aids or abets, he personally participates in that when he drives away. Somebody who does that is guilty of the crime."
B. Analysis
To reiterate, CALCRIM former No. 400 provided general principles regarding aiding and abetting and explained, in relevant part, that "[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)
In McCoy, our high court explained that "[a]ider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1120.)
Following McCoy, several courts found the "equally guilty" language in CALCRIM former No. 400 and CALJIC No. 3.00 had the potential to mislead the jury into believing an aider and abettor's culpability could not be less than the direct perpetrator's, even if the aider and abettor has a less culpable mental state. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165; People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero); People v. Loza (2012) 207 Cal.App.4th 332, 354-355 (Loza).) The "'equally guilty'" language in CALCRIM former No. 400 could suggest to a jury that an aider and abettor's liability was tied to the direct perpetrator's mens rea rather than the aider and abettor's own state of mind. (Nero, supra, at pp. 517-518.)
In People v. Johnson (2016) 62 Cal.4th 600 (Johnson), a capital murder case, the prosecutor pursued a theory that the defendant aided and abetted the murder of the victim by luring the victim into a deserted alley where another man, the perpetrator, executed the victim with a shot to the back of the head. (Id. at p. 638.) The trial court instructed the jury on aiding and abetting principles, introducing the theory with CALCRIM former No. 400, which included the "'equally guilty'" language. (Johnson, supra, at p. 638.) On appeal after conviction, the defendant argued the instruction permitted the jury to convict the defendant of first degree murder based on the culpability of the shooter, without considering his own mental state. If the jury concluded the shooter premeditated and deliberated the murder, the defendant argued, the "'equally guilty'" language bound the jury to find the defendant guilty of first degree murder, even if jurors believed the defendant did not harbor the mental state for first degree murder. (Ibid.)
The California Supreme Court rejected this argument, reasoning that the language in CALCRIM former No. 400 "generally stated a correct rule of law," but could be misleading in a case where principals might be guilty of different crimes and the jury believes the instruction prevents such a verdict. (Johnson, supra, 62 Cal.4th at p. 640.) However, no evidence suggested the defendant's mental state was less culpable than that of the actual killer, and nothing in the record suggested the jurors may have believed the equally guilty language in the instruction required them to determine the defendant's liability based on the perpetrator's mental state rather than the defendant's own mental state. (Ibid.) Moreover, the high court explained, the jury was instructed under CALCRIM No. 401, which explained that aiding and abetting liability was predicated on proof that the defendant knew the perpetrator intended to kill the victim, that he intended to aid and abet the perpetrator in committing the killing, and that the defendant aided the perpetrator in that killing, "which would have cleared up any ambiguity arguably presented by CALCRIM former No. 400's reference to principals being 'equally guilty.'" (Johnson, supra, at p. 641.)
Here, the jury was instructed under CALCRIM former No. 400, which included this "equally guilty" language. (Italics added.) Like the defendant in Johnson, defendant maintains this language could have misled the jury into finding defendant guilty of first degree murder based on the perpetrator's state of mind, even if it believed defendant did not harbor any malice. According to defendant, the prosecutor increased the potential for confusion by framing a hypothetical about aiding and abetting a robbery from which the jury could have believed a person's mere presence or knowledge that a crime was being committed would amount to aiding and abetting. From this combination, defendant maintains, the jury could have convicted him of first degree murder by concluding he was equally as guilty as Lopez, regardless of defendant's own mental state.
In the circumstances of this case and the full body of instructions given, there was no potential for jury confusion. First, the "'"equally guilty"'" language in CALCRIM former No. 400 is generally a correct statement of the law. (Johnson, supra, 62 Cal.4th at p. 639; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433; People v. Amezcua and Flores (2019) 6 Cal.5th 886, 918.) While it has the potential to mislead the jury, here the jury was also instructed to "Pay careful attention to all of these instructions and consider them together." To that end, the possibility of jury confusion over the "'equally guilty'" language was foreclosed by the instruction given to the jury under CALCRIM No. 401. (Johnson, supra, at pp. 640-641 [CALCRIM No. 401 would have "cleared up" any ambiguity arguably presented in CALCRIM former No. 400's reference to principals being "equally guilty"].) To conclude defendant aided and abetted the unlawful killing-the only crime charged in this case-CALCRIM No. 401 required the jury to find the defendant "knew that the perpetrator intended to commit the crime" and that defendant acted with the intent to "aid and abet the perpetrator in committing the crime." This instruction makes clear that liability as an aider and abettor is based on the defendant's mental state rather than the perpetrator's, and the jury is presumed to have synthesized this instruction with CALCRIM former No. 400 and followed it. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [courts presume jurors are intelligent persons capable of understanding and correlating all jury instructions given].)
At oral argument defendant maintained that an evidentiary hearing is required if there is any possiblity the jury misconstrued or misapplied the instructions to convict him of murder based on a theory of imputed malice, but this is overbroad. Such a standard would encompass every type of theoretical possibility from the improbable to the patently absurd, even including presuming the jury acted unintelligently, was unable to correlate instructions, or simply refused to follow the instructions given. Such conduct by a jury is always possible in an abstract sense and difficult to conclusively negate, but presuming so is contrary to the general presumptions underpinning our jury system. (See generally Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9 ["[We] presume[] that jurors, conscious of the gravity of their task, attend closely the particular langauge of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them."].) Considering the instructions as a whole, there must be some basis beyond speculation or mere abstract possibility to allege the jury could have misconstrued the instructions and convicted the petitioner under a theory of imputed malice.
Further, the hypothetical the prosecutor posed to the jury regarding aiding and abetting a robbery did not contribute to any potential for jury confusion. The hypothetical included facts that the aider and abettor knew the perpetrator intended to commit a robbery and, based on that knowledge, agreed to facilitate the perpetrator's commission of the crime by driving the perpetrator to and from the bank. (See People v. Beeman (1984) 35 Cal.3d 547, 560 [sharing the same specific intent as the perpetrator does not mean the aider and abettor must be prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor must seek to share the fruits of the crime].) The hypothetical was consistent with CALCRIM No. 401 because it referenced the aider and abettor's full knowledge of the perpetrator's criminal purpose and, from his agreement to help the perpetrator commit the crime, indicated the aider and abettor's intent to facilitate commission of the crime; it did not suggest that defendant could be found guilty as an aider and abettor merely because he was in the car with the perpetrator before and after the shooting. Additionally, the jury was expressly directed under CALCRIM No. 401 that just because "a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor."
Defendant contends the instruction under CALCRIM No. 401 does not definitively preclude the possibility of jury confusion on this issue. Relying on Nero and Loza, defendant contends that even with an instruction under CALCRIM No. 401, the "equally guilty" language of CALCRIM former No. 400 might still mislead the jury if the evidence shows the principals might be guilty of different crimes and the jury believes the instruction prevents such a verdict. (See Nero, supra, 181 Cal.App.4th at pp. 517518 [although jury was instructed under CALJIC No. 3.01, a corollary of CALCRIM No. 401, the "'"equally guilty"'" language in CALJIC No. 3.00 was misleading as evidenced by jury asking whether aider and abettor could be guilty of a greater or lesser offense than the perpetrator].) According to defendant, eliminating the possibility of confusion necessitates a factual inquiry based on the evidence presented at trial, which should be considered at an evidentiary hearing, not at the prima facie stage of the proceedings. At the prima facie stage, defendant maintains, he is not required to prove the jury was actually confused; he needs to allege only that the jury could have been confused.
We need not consider or weigh any evidence presented at trial to conclude that CALCRIM No. 401 foreclosed any ambiguity that may have been presented by the "equally guilty" language in CALCRIM former No. 400. Unlike the defendants in Nero or Loza, defendant was tried alone, and the jury asked no questions during deliberations-a fact not subject to debate and one reflected in the record of conviction. (Cf. Nero, supra, 181 Cal.App.4th at pp. 509, 511-513 [brother and sister tried together; jury confusion about aiding and abetting principles reflected in questions jury posed to the court, and court answered questions incorrectly by emphasizing "'equally guilty'" language in CALJIC No. 3.00]; Loza, supra, 207 Cal.App.4th at pp. 336, 348-349, 355 [husband and wife tried together; jury confusion about aiding and abetting principles reflected in jury questions to the court, and the court "failed to address the jury's obvious confusion" and simply redirected them to the instructions previously given].) Here, without any indicia of jury confusion, the possibility the jury could have been confused about the "equally guilty" language in CALCRIM former No. 400 would be based solely on speculation the jury did not correlate the instructions and failed to follow CALCRIM No. 401.
Moreover, the jury here necessarily concluded defendant personally intended to kill. First degree premeditated murder, as the jury was instructed, is the unlawful killing of a human being with malice aforethought, but it also has three additional elements: willfulness, premeditation, and deliberation. (People v. Knoller (2007) 41 Cal.4th 139, 151.) The jury was instructed under CALCRIM No. 521 that "defendant acted willfully if he intended to kill." An intent to kill is express malice. (People v. Beltran (2013) 56 Cal.4th 935, 941.) Thus, in finding defendant guilty of first degree premeditated murder, the jury necessarily concluded defendant personally acted with express malice. (See e.g., People v. Estrada (2022) 77 Cal.App.5th 941, 945 [the defendant "was convicted of first degree murder as an aider and abettor with intent to kill, and he is therefore ineligible for resentencing under section [1172.6]"].)
Defendant argues the instruction under CALCRIM No. 521 was not properly tailored to the aiding and abetting context and contains ambiguity about whether defendant was personally required to premeditate the unlawful killing. Defendant points out the jury was instructed that "defendant acted with premeditation if he decided to kill before committing the act that caused death." Defendant contends it was Lopez, the shooter, who committed the act that caused death, and thus the instruction is ambiguous as to which actor had to commit which acts, and it did not require the jury to find that defendant personally premeditated the killing.
Even assuming the instruction did not require the jury to find defendant personally premeditated the crime to find murder in the first degree, defendant's ineligibility for section 1172.6 relief would not change. Section 1172.6 relief is available only to a defendant convicted under a theory of imputed malice, not imputed premeditation. To convict defendant of first degree premeditated murder, the jury was very specifically instructed pursuant to CALCRIM No. 521 that it had to find "defendant acted willfully if he intended to kill."
In sum, the jury instruction under CALCRIM former No. 400, which contained the potentially confusing "equally guilty" language does not, by itself, create a possibility the jury was misled by the instructions. The closing arguments did not add to any possibility of confusion: the prosecutor's robbery hypothetical was not improper, and it did not suggest defendant's culpability could be based on the perpetrator's state of mind. There was no indicia of jury confusion on this issue. Thus, in conjunction with CALCRIM No. 401, any possible ambiguity from the "'equally guilty'" language was foreclosed. (Johnson, supra, 62 Cal.4th at pp. 640-641.) Moreover, the instruction under CALCRIM No. 521 establishes that by convicting defendant of first degree premeditated murder, the jury necessarily found defendant personally intended to kill. Based on the jury instructions and the jury's verdict, the possibility the jury convicted defendant under an improper theory of imputed malice is precluded.
As we conclude defendant is ineligible for resentencing under section 1172.6, we do not reach the People's argument that defendant's second petition under section 1172.6 is precluded under the doctrine of collateral estoppel.
DISPOSITION
The trial court's order of August 22, 2022, denying defendant's second petition under section 1172.6, is affirmed.
[*] Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.