People v. Luna CA2/2

Filed 3/11/21 P. v. Luna CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B301823

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A886931)
v.

GILBERT THOMAS LUNA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Rogelio Delgado, Judge. Reversed and
remanded.

Dee A. Hayashi, under appointment by the Court of Appeal,
for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *
 Gilbert Thomas Luna (defendant) appeals the trial court’s
summary denial of his motion for relief under Penal Code section
1
1170.95. This was error because the record did not foreclose
relief as a matter of law. Accordingly, we reverse and remand for
the trial court to conduct an evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
2
I. Facts
A. The underlying crime
On October 10, 1987, Larry Hilario Viera (Viera) and
defendant, who were both members of the El Monte Flores street
gang, attacked Jake Armenta (Armenta). Viera beat Armenta
with a metal bumper jack while defendant kicked him. Armenta
died from his wounds.
B. Charging, conviction and appeal
The People charged (1) Viera and defendant with murder
(§ 187), and (2) Viera with assault with a deadly weapon (§ 245,
subd. (a)(1)). As to the murder count, the People further alleged
that Viera had personally used a dangerous and deadly weapon
(§ 12022, subd. (b)).
The trial court instructed the jury on the crimes of murder
(in both first and second degrees) as well as the lesser included
offenses of voluntary manslaughter (due to heat of passion) and
involuntary manslaughter (as a killing that occurred in the
course of committing the misdemeanor crime of battery). The

1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction on appeal. (People v.
Viera et al. (May 28, 1991, B041023) [nonpub. opn.].)

2
court also instructed the jury that defendant could be found
guilty of murder or manslaughter on one of two theories—
namely, (1) for aiding and abetting Viera in committing the
murder or manslaughter (the so-called direct aiding and abetting
theory, which is underlined in the next footnote setting forth the
actual instruction), or (2) for aiding and abetting Viera in
committing a lesser crime (such as the felony of assault with a
deadly weapon or the misdemeanor of battery), if the jury also
found that homicide is a natural and probable consequence of
that lesser crime (the so-called natural and probable
consequences theory, which is italicized in the next footnote
setting forth the actual instruction).3 Indeed, the jury
instructions expressly noted that the natural and probable

3 In pertinent part, the jury was instructed:
“The persons concerned in the [commission] [or] [attempted
commission] of a crime who are regarded by law as principals in
the crime thus [committed] [or] [attempted] and equally guilty
thereof include:
“1. Those who directly and actively [commit] . . . the act
constituting the crime, or
“2. Those who aid and abet the [commission] . . . of the
crime.
“3. This count refers specifically to the Defendant, Gilbert
Luna. [¶] One who aids and abets is not only guilty of the
particular crime that to his knowledge his confederates are
contemplating committing, but he is also liable for the natural
and probable consequences of any act that he knowingly and
intentionally aided or encouraged. It is for you, the jury, to
determine whether the defendant is guilty of the crime allegedly
contemplated, and, if so, whether the crime charged was a natural
and probable consequence of the criminal act knowingly and
intentionally encouraged.”
(Emphases added.)

3
consequences theory “refers specifically to the defendant, Gilbert
Luna.”
The jury was given a separate “verdict form[] for each count
charged and for each lesser and necessarily included offense.”
The jury filled out the “Not Guilty” verdict form for first degree
murder, and the “Guilty” verdict form for second degree murder.
The “Guilty” verdict form for second degree murder contained a
pre-typed description of the crime, which read: “crime of murder
in the second degree in violation of Penal Code section 187(a), a
felony, who did willfully, unlawfully and with malice
aforethought murder Jake Armenta, a human being, as charged
in count one of the information.”
The trial court then sentenced defendant to 15 years to life
in prison.
Defendant appealed, challenging two evidentiary rulings
and two instructional rulings. As pertinent here, defendant
challenged the involuntary manslaughter instruction on the
ground that it did not set forth the elements of the misdemeanor
crime of battery. We agreed that this was error, but concluded
that it was not prejudicial (1) because the crime that defendant
aided and abetted “was no mere misdemeanor battery,” and (2)
because “the jury found that [defendant] shared Viera’s elevated
mental state, namely malice.”
II. Procedural Background
On January 28, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under

4
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.”
The People filed an informal response arguing that (1)
section 1170.95 is unconstitutional, and (2) defendant was not in
any event entitled to relief under section 1170.95 because the
jury in his case was never instructed on the natural and probable
consequences theory. This second argument was factually
incorrect because, as noted above, the jury in defendant’s case
was instructed on the natural and probable consequences theory.
The trial court appointed counsel for defendant, and
counsel filed points and authorities in support of defendant’s
petition. Counsel argued that section 1170.95 was constitutional,
but incorrectly agreed with the People that defendant’s jury had
not been instructed on the natural and probable consequences
theory.
The trial court subsequently entered orders declaring
section 1170.95 to be constitutional, but concluding that the court
file “reflects that [defendant] was not convicted under a theory of
felony murder or a theory of natural and probable consequences.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition because the court’s reason
for denying relief is incorrect. Because the trial court’s reason for
summarily denying relief turns on its interpretation of section
1170.95 and the application of law to undisputed facts, our
4
review of that reason is de novo. (People v. Blackburn (2015) 61

4 Because our review is de novo, we grant the People’s
request to take judicial notice of the record from the prior appeal
in this case and consider its contents.

5
Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013)
56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section.
(§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th
1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis);
People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted
Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief
under section 1170.95 if, as relevant here, (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of second degree murder,” and (3) he “could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a).) A person may be convicted of murder, even
after the 2019 changes made to sections 188 and 189, if he (1)
“was the actual killer,” (2) aided and abetted the actual killer
with the intent to kill, or (3) “was a major participant in the
underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e).) A “‘prima facie showing is one that is
sufficient to support the position of the party in question.’”
(Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 851.)
On the facts of this case, defendant has made the requisite
prima facie showing for relief because his petition alleges that he
was charged with murder under a natural and probable

6
consequences theory, was convicted of second degree murder, and
“could not now be convicted of first or second degree murder.”
To be sure, a trial court evaluating whether a defendant
has made a prima facie showing in a section 1170.95 petition is
not required to accept the petition’s allegations at face value and
may also examine the record of conviction—which includes the
jury instructions and verdict forms as well as any prior appellate
decisions. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo,
supra, 44 Cal.App.5th at pp. 329-330; People v. Tarkington (2020)
49 Cal.App.5th 892, 899-900, 908-909, review granted Aug. 12,
2020, S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 968
(Drayton); People v. Edwards (2020) 48 Cal.App.5th 666, 673-674,
review granted July 8, 2020, S262481; People v. Torres (2020) 46
Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011
(Torres); but see People v. Cooper (2020) 54 Cal.App.5th 106, 121-
123, review granted Nov. 10, 2020, S264684 [rejecting Lewis and
its progeny]; see also People v. Woodell (1998) 17 Cal.4th 448, 451
(Woodell) [“the record of conviction” includes “the appellate court
record, including the appellate opinion”]; People v. Reed (1996) 13
Cal.4th 217, 223 [“record of conviction” includes “the preliminary
hearing transcript”].) But the contents of the record of conviction
defeat a defendant’s prima facie showing only when the record
“show[s] as a matter of law that the petitioner is not eligible for
relief.” (Lewis, at p. 1138, italics added; Verdugo, at p. 333;
Torres, at p. 1177; Drayton, at p. 968; see also People v. Cornelius
(2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410 [record must show defendant is “indisputably ineligible
for relief”].) A defendant is ineligible for relief as a matter of law
only in cases where the record conclusively shows that the jury
actually (either expressly or implicitly) relied—and the

7
defendant’s murder conviction actually rests—upon a theory of
liability that is unaffected by section 1170.95 (that is, on the
theory that defendant was the actual killer or directly aided and
abetted the killing). (Accord, People v. Nunez (2020) 57
Cal.App.5th 78, 97 [looking to what the “jury necessarily found”].)
Here, the record of conviction does not establish, as a
matter of law, that defendant is not eligible for relief under
section 1170.95. The jury was instructed on two theories of
criminal liability for second degree murder—the direct aiding and
abetting theory, and the natural and probable consequences
theory—and the jury was given a general “guilty” verdict form for
second degree murder that did not permit it to specify on which of
those two theories its verdict was actually based. Although the
prosecutor, in closing, emphasized the direct aiding and abetting
theory, the prosecutor never disavowed the natural and probable
consequences theory; it was still on the table. (See People v.
Austell (1990) 223 Cal.App.3d 1249, 1252 [theory prosecutor
disavows will not be deemed to be basis for conviction].) Nor can
we infer which theory underlays the jury’s second degree murder
verdict from any of the jury’s other findings, as the jury’s only
other finding was that Viera personally inflicted great bodily
injury using the bumper jack. As a result, the record of
conviction does not eliminate the possibility that the jury found
defendant guilty of second degree murder under the natural and
probable consequences theory and hence does not “show as a
matter of law that [defendant] is not eligible for relief.” (Lewis,
supra, 43 Cal.App.5th at p. 1138.)
The People resist this conclusion with two arguments.
First, the People argue that the jury necessarily found
defendant guilty of second degree murder under the direct aiding

8
and abetting theory because the guilty verdict form the jury
signed described the crime at issue as “the crime of murder in the
second degree in violation of Penal Code section 187(a), a felony,
who did willfully, unlawfully and with malice aforethought,
murder Jake Armenta.” (Italics added.) But the italicized
language cannot bear the weight the People put on it. The
language on a verdict form is not always dispositive because the
findings reflected by that verdict form are a product of the “‘“the
issues submitted to the jury and the instructions of the court.”’”
(People v. Jones (1997) 58 Cal.App.4th 693, 710 (Jones), italics
added; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-
1273 [noting that the “form of the verdict is immaterial”].) This
is why the language in a verdict form must be “‘“construed in
light”’” of those issues and instructions. (Jones, at p. 710.) Here,
the instructions presented the jury with two possible routes to a
guilty verdict on the second degree murder charge and the
general verdict form the jury was given did not permit the jury to
specify which of those two routes it traveled. This is not a case
where the jury was given two guilty verdict forms for second
degree murder—one grounded on a direct aiding and abetting
theory (and using the phrase “malice aforethought”) and another
grounded on a natural and probable consequences theory (and
omitting the phrase “malice aforethought”)—such that we might
be able to infer that the jury’s use of one verdict form rather than
the other indicated the basis for its guilty verdict. Instead, the
jury was given a single, general guilty verdict form for the crime
of second degree murder that had the statutory definition of the
crime of second degree murder pre-printed on it. (See § 187.) In
these circumstances, the presence of the phrase “malice
aforethought” is not a proxy for a finding by the jury that

9
defendant was guilty as a direct aider and abettor (and thus
acted with the intent to kill that would render him ineligible for
relief under section 1170.95 as a matter of law).
Second, the People argue that we, in our 1991 opinion
affirming defendant’s conviction, recounted that “the jury found
that [defendant] shared Viera’s elevated mental state, namely
malice” in the course of explaining why the instructional error
regarding the lesser included offense of involuntary
manslaughter was not prejudicial. This finding, the People
continue, is part of the record of conviction and must therefore be
given dispositive weight. Prior appellate court decisions in a case
are typically viewed as part of the record of conviction—and
typically sidestep the hearsay rule—because they merely
“reflect[] what is in the trial record.” (Woodell, supra, 17 Cal.4th
at p. 456.) But what if a decision got the trial record wrong? Our
Supreme Court tells us that “not . . . all appellate opinions”
“establish” what happened before the trial court and “[w]hether
and to what extent an opinion is probative in a specific case must
be decided on the facts of that case.” (Id. at p. 457.) Here, our
prior opinion appears to have made the same mistake as the
People, defendant’s lawyer, and the trial court in this case—it
treated boilerplate language in a general verdict form as being an
express finding of the jury when the instructions and verdict
forms presented to that jury demonstrate that there was no such
express finding. In such circumstances, we decline to give
dispositive weight to the language in our prior decision.
* * *
In light of our analysis, we have no occasion to separately
analyze defendant’s additional argument that his counsel was
constitutionally ineffective for making an incorrect concession:

10
The concession was incorrect and thereby failed to alert the trial
court to the error we now find warrants reversal. Accordingly,
defendant should be appointed new counsel on remand.
DISPOSITION
The order is reversed. On remand, the trial court is to
appoint new counsel and conduct the hearing required by section
1170.95, subdivision (d)(3) at which it is the prosecution’s burden
to prove beyond a reasonable doubt that defendant is “ineligible
for resentencing” under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.
HOFFSTADT

I concur:

________________________, P. J.
LUI

11
People v. Luna, B301823

ASHMANN-GERST, J.—Dissenting

I would affirm.
A. Trial court decision not reviewable
Below, Gilbert Thomas Luna’s (Luna) counsel filed a brief
stating that Luna “was convicted of [section] 187 but not
pursuant to either a felony murder or natural and probable
consequences theory of culpability. His jury was not instructed
on either of those theories of culpability. Rather, [Luna] was
prosecuted as a direct aider and abettor[.]” The trial court could
have relied upon these concessions, justifying its denial of Luna’s
petition for resentencing. If there was legal error in denying
Luna’s petition, that error was invited and is not reviewable on
appeal. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
B. Ineffective assistance of counsel
Luna contends that he was provided with ineffective
assistance of counsel stemming from counsel’s erroneous
concessions. Based on the record, it appears that the concession
that Luna was prosecuted as a direct aider and abettor was
correct. But even assuming counsel fell below the standard of
reasonable competence by making a concession that undermined
Luna’s petition for resentencing, Luna is not entitled to relief
because he did not suffer prejudice.
1. The law
“To prevail on a claim of ineffective assistance of counsel,
the defendant must show counsel’s performance fell below a
standard of reasonable competence, and that prejudice resulted.
[Citations.] When a claim of ineffective assistance [of counsel] is
made on direct appeal, and the record does not show the reason
for counsel’s challenged actions or omissions, the conviction must
be affirmed unless there could be no satisfactory explanation.”
(People v. Anderson (2001) 25 Cal.4th 543, 569.) Reversal is
required only if it is reasonably probable that the result would
have been more favorable to the defendant but for his counsel’s
errors. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland v. Washington (1984) 466
U.S. 668, 694.)
2. Proceedings below
a. Jury instructions
The jury was instructed on the following crimes: first
degree murder, second degree murder, and voluntary and
involuntary manslaughter.
Regarding murder, the jury was given CALJIC No. 8.10
and instructed generally that murder is the unlawful killing of a
human being with malice. As a follow up, they were instructed
pursuant to CALJIC No. 8.11 and told: “‘Malice’ may be either
express or implied. [¶] Malice is express when there is
manifested an intention unlawfully to kill a human being. [¶]
Malice is implied when the killing results from an intentional act
involving a high degree of probability that it will result in death,
which act is done for a base, anti-social purpose and with a
wanton disregard for human life or when the killing results from
an intentional act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life.”

2
 After instructing the jury on the crimes, the trial court
instructed the jury with the CALJIC Nos. 3.00 and 3.01, the
instructions related to principals and aiding and abetting.
Pursuant to CALJIC No. 3.00, the jury was told: “The
persons concerned in the commission . . . of a crime who are
regarded by law as princip[als] in the crime thus committed
. . . and equally guilty thereof include first those who directly and
actively . . . commit the act constituting the crime or [second]
those who aid and abet the commission . . . of the crime. [¶] One
who aids and abets is not only guilty of a particular crime that to
his knowledge his confederates are contemplating committing,
but he’s also liable for the natural and probable [consequences] of
any act that [he] knowingly and intentionally aided or
encouraged.[1] [¶] It’s for you, the jury, to determine whether the
defendant is guilty of the crime allegedly contemplated and if so,
whether the crime charged was a natural and probable
consequence of the criminal act knowingly and intentionally
encouraged.”
No one requested, the parties did not discuss, and the trial
court did not give the jury CALJIC No. 3.02, titled “Princip[als]—
Liability for Natural and Probable Consequences.”2

1 Immediately before this sentence in the written version of
CALJIC No. 3.00 given to the jury, the following handwritten
sentence was inserted: “This count refers specifically to the
defendant, Gilbert Luna.”

2 The version of CALJIC No. 3.02 in effect at the time of the
trial stated: “One who aids and abets is not only guilty of the
particular crime that to [his][her] knowledge [his][her]
confederates are contemplating committing, but [he] [she] is also
liable for the natural and probable consequences of any criminal

3
 b. Prosecutor’s closing argument
The prosecutor explained to the jury that murder requires
a showing of an unlawful killing of a human being with malice
aforethought. He described express and implied malice. After
explaining implied malice, he stated that “[t]here is an
alternative that sounds almost exactly the same. The person
does an intentional act the natural consequences of which are
dangerous to life. ‘The act is deliberately performed by a person
who knows that his conduct . . . endangers the life of another and
who acts with conscious disregard of life.’” The prosecutor went
on to argue that “[w]hat each of those boils down to is you did this
act. You knew what you were doing when you did the act. You
knew it was dangerous to life or could result in death, and you
went ahead and did it anyway for either a . . . [conscious]
disregard for life or for a base anti-social purpose. Either one of
these would apply in our case. There can’t be any social purpose
in beating someone with a bumper jack who is lying on the
ground. [¶] These are the elements of murder. This is what
malice consists of.”
The prosecutor noted that Luna was charged with aiding
and abetting, and that the evidence had to show that Luna knew
what was occurring. “Well,” the prosecutor said, “[Luna is]
standing there apparently kicking the [victim] at the same time
as Larry [Hilario] Viera [(Viera)] is striking [the victim] in the

act that [he][she] knowingly and intentionally aided and abetted.
You must determine whether the defendant is guilty of the crime
originally contemplated, and, if so, whether the crime charged [in
Count[s] ______] was a natural and probable consequence of such
originally contemplated crime.” (CALJIC No. 3.02 (5th ed. 1988);
see also People v. Prettyman (1996) 14 Cal.4th 248, 258, fn. 2.)

4
head with the bumper jack. I don’t see how [Luna] could deny
knowledge of what was happening. There was an intent to kill.”
“[K]icking someone while they’re on the ground while someone
else is striking with a weapon shows your knowledge. It shows
your intent to aid and abet.”
c. Defense counsel’s closing argument
Luna’s counsel did not argue whether Luna acted with or
without malice. Rather, counsel only argued that there was
insufficient evidence identifying Luna as a participant in the
homicide.
d. Jury verdict
After deliberation, the jury rendered a verdict pursuant to
a verdict form that stated: “We, the jury . . . find . . . [Luna]
guilty of [the] crime of murder in the second degree in violation of
Penal Code section 187 [subdivision (a)],[3] a felony, who did
willfully, unlawfully, and with malice aforethought murder Jake
Armenta [(Armenta)].”
3. Analysis of prejudice
Luna suffered prejudice only if the jury’s finding of malice
is in doubt and he was therefore entitled to an evidentiary
hearing under section 1170.95, subdivision (d) to determine if he
is entitled to resentencing.
The question is whether we should honor the jury’s finding
of malice, or conclude that it is unreliable because the jury may
not have been given alternative verdict forms as the majority
contends, one recognizing a malice theory of liability, the other
recognizing a natural and probable consequences theory of

3 All further statutory references are to the Penal Code
unless otherwise indicated.

5
liability that did not require a finding of malice. (People v.
Gentile (2020) 10 Cal.5th 830, 847 (Gentile) [“an aider and abettor
need not personally possess malice, express or implied, to be
convicted of second degree under a natural and probable
consequences theory”].) The only reason to not honor the jury’s
finding of malice is if it is possible that Luna was convicted on a
theory that was abolished by Senate Bill No. 1437 (SB 1437). As
Gentile explained, the purpose of SB 1437 was “‘to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.’” (Gentile, supra, 10 Cal.5th at
p. 849.) “Indeed, the natural and probable consequences doctrine
authorizes precisely what [SB 1437] forbids: it allows a fact
finder to impute malice ‘to a person based solely on his or her
participation in a crime.’ [Citation.]” (Id. at p. 847.)
Answering the question presented requires interpretation
of the jury’s verdict.
“The form of a verdict is immaterial provided the intention
to convict of the crime charged is unmistakably expressed.
[Citation.]” (People v. Mackabee (1989) 214 Cal.App.3d 1250,
1256.) Where “a jury’s verdict is ambiguous, ‘A verdict is to be
given a reasonable intendment and . . . construed in light of the
issues submitted to the jury and the instructions of the court.’
[Citations.]” (Ibid.) Also, the verdict should be considered in
light of the prosecutor’s closing argument. (Ibid.)
Here, the jury instructions and the argument of the
prosecutor confirm that the jury found Luna guilty of second
degree murder with malice aforethought, and there is no basis to

6
conclude that the verdict is an unreliable indicator that the jury
found that Luna acted with malice.
The jury was instructed that murder is the unlawful killing
of another with malice. It was not instructed under the natural
and probable consequences doctrine that Luna could be held
liable for “any reasonably foreseeable offense committed by the
person [the defendant] aids and abets. [Citation.]” (People v.
Croy (1985) 41 Cal.3d 1, 12, fn. 5.)4 Also, the jury was not
instructed to consider whether Luna was guilty of a specified
target offense (for example, assault), and that murder was the
natural and probable consequence of the commission of the
specified target offense.5 That the words natural and probable
consequences were used in the instruction given does not mean
the defendant was tried on the natural and probable
consequences doctrine or that the jury was asked to make a
finding on that theory. Further, if the trial court had intended to
give an instruction on a natural and probable consequences
theory of liability (or if it had been the prosecutor’s theory of the
case), the parties could have requested, and the trial court could
have used, CALJIC No. 3.02.

4 I recognize that this language was not in CALJIC No. 3.00
at the time of trial. Nonetheless, I conclude that the absence of
such language meant the jury was not oriented toward a natural
and probable consequences inquiry.

5 The version of CALJIC No. 3.00 in use at the time did not
require the target crime to be specified. In any event, Luna was
not charged with any other crime except for murder. In contrast,
Luna’s codefendant, Viera, was not only charged with the murder
of Armenta, he was also charged with and convicted of “assault
great bodily injury and with deadly weapon” upon Paul Martinez.

7
 The prosecutor indicated that malice is necessary for
murder. Then, he equated implied malice and the natural and
probable consequences theory of liability. He said that they
sound “almost exactly the same.” More importantly, he defined
the natural and probable consequences theory by borrowing from
the instruction on implied malice, stating that it required a
showing that a person acted deliberately knowing he was
endangering the life of another or, stated another way, he acted
with a conscious disregard of life.6 The prosecutor explained that
all the theories of murder boiled down to “you did this act. You
knew what you were doing when you did the act. You knew it
was dangerous to life or could result in death, and you went
ahead and did it anyway for either a . . . [conscious] disregard for
life or for a base anti-social purpose.”

6 As our Supreme Court has explained: “[i]mplied malice
. . . has both a physical and a mental component. The physical
component is satisfied by the performance of ‘an act, the natural
consequences of which are dangerous to life.’ [Citation.] The
mental component is the requirement that the defendant ‘knows
that his conduct endangers the life of another and . . . acts with a
conscious disregard for life.’ [Citation.]” (People v. Patterson
(1989) 49 Cal.3d 615, 626.)

8
 Based on the instructions and the prosecutor’s argument,
the jury was asked to decide whether to convict Luna of second
degree murder on a malice theory. It was not asked to convict
him based on the natural and probable consequences doctrine. I
conclude there is no ambiguity as to whether the jury found
malice, and Luna cannot establish that he was prejudiced by
defense counsel’s concession. As a matter of law, he is ineligible
for relief under section 1170.95.

__________________________, J.
ASHMANN-GERST

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