Filed 10/18/21 P. v. Velasquez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B309388
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA329116-06)
v.
YOVANNI VELASQUEZ,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Larry P. Fidler, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________
Yovanni Velasquez, convicted of the first degree murder of
a 23-day-old infant, conspiracy to commit murder, attempted
willful, deliberate and premeditated murder and two counts of
assault with a semiautomatic firearm in a gang-related shooting
on September 15, 2007, appeals the denial of his petition for
resentencing pursuant to Penal Code section 1170.95.1
Velasquez, who acted as the lookout during the shooting,
contends the superior court, after appointing counsel and finding
he had made a prima facie showing of entitlement to relief,
applied the wrong standard of proof at the evidentiary hearing
following issuance of an order to show cause. Because the record
of conviction establishes that Velasquez is ineligible for
resentencing as a matter of law, any error committed by the
superior court was harmless. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Velasquez’s Trial for Murder
Velasquez was charged in a third amended information,
along with Giovanni Macedo, Juan Pablo Murillo, Guadalupe
Torres Rangel and two other men, with one count of murder
(§ 187, subd. (a)), three counts of attempted willful, deliberate
and premeditated murder (§§ 187, 664),2 one count of attempted
extortion (§§ 520, 664), one count of conspiracy to commit
extortion (§§ 182, 520) and one count of conspiracy to commit
murder (§§ 182, 187). In connection with each count the People
alleged a principal had used a firearm causing great bodily injury
1 Statutory references are to this code.
2 At trial the court granted the People’s motion to reduce the
charge of attempted murder as to two of the victims to assault
with a semiautomatic firearm (§ 245, subd. (b)).
2
or death within the meaning of section 12022.53, subdivisions (d)
and (e)(1). As to the murder count the People also alleged the
defendants had intentionally killed the victim while they were
active participants in a criminal street gang and the murder was
carried out to further the activities of the gang. (§ 190.2,
subd. (a)(22).) As to all counts the information alleged the crimes
had been committed to benefit a criminal street gang (§ 186.22,
subd. (b)).
Our opinion affirming Velasquez’s judgment of conviction
describes the evidence presented at his joint trial with Murillo
and Rangel. (People v. Murillo (Feb. 15, 2012, B226736) [nonpub.
opn.].)
Velasquez was a member of the Columbia Lil Cycos (CLC),
a clique of the 18th Street criminal street gang that controlled an
area of Los Angeles near MacArthur Park. CLC members
managed narcotics traffic within their territory by selling or
supplying drugs to secondary dealers. CLC members also taxed
unlicensed street vendors who sold their wares within the
densely populated neighborhoods east of MacArthur Park.
Francisco Clemente, who sold electronic items on 6th Street
near MacArthur Park, was approached multiple times in the
months preceding the September 2007 shooting by CLC gang
members or associates, including Rangel, who demanded money
for the right to sell on the street. On one occasion six men
approached Clemente and told him he had to pay to sell his
merchandise or they would beat him. Clemente pulled out a
knife; the men fled. On another occasion, a week or two before
the shooting, a man Clemente identified as Sergio Pantoja, the
leader of the CLC clique of the 18th Street gang, threatened he
3
would “send [Clemente] to hell” if he did not leave the street.
Clemente refused to leave.
On September 15, 2007 Clemente was selling his
merchandise at 6th Street and South Burlington Avenue. He
was accompanied by his girlfriend and another friend, whose
infant son was in a stroller near her, behind Clemente. Around
6:00 p.m. Rangel demanded $80 from Clemente, who refused to
pay. Around 9:00 p.m. a man holding a gun stepped out of a
nearby video store, walked toward Clemente and shot at him
from six or seven feet away. Several shots hit Clemente.3
Another shot struck the infant, seated in the stroller behind
Clemente, killing him.
Based on information from a teenager who helped her
parents sell goods in the neighborhood and had witnessed the
shooting and could identify several of the participants, the police
established a wiretap on Murillo’s phone and eventually arrested
Murillo, Rangel, Velasquez, Macedo and several others.
Macedo entered a plea agreement and testified for the
People at Murillo, Rangel and Velasquez’s trial. Macedo, who
was 18 years old at the time of the shooting, identified Velasquez
and Rangel as participants in the shooting and said Murillo, who
was second in command of the CLC clique after Pantoja,
organized the attack at Pantoja’s direction. A week or so before
the shooting Murillo and Macedo had discussed the possibility of
beating Clemente to force him to pay the gang’s taxes, but
Clemente was not on the street that day. On the day of the
shooting Murillo and Macedo met Velasquez, Rangel and Juvenal
3 Clemente was shot in the right face and neck area, upper
right chest and right abdomen. He suffered life-threatening
wounds to his chest and head and spent 15 days in the hospital.
4
Mejia, another gang member, at a donut shop near MacArthur
Park where they planned the attack on Clemente. Murillo then
assigned roles, designating Macedo as the shooter, Velasquez and
Murillo as lookouts, and Mejia to identify Clemente for Macedo.
According to Murillo, it was Pantoja’s idea to shoot Clemente
rather than beat him.
After receiving their assignments, the members of the
group headed to their positions. Mejia walked Macedo past
Clemente several times to make sure Macedo understood which
vendor was the target. Mejia and Macedo then walked into a
video store, where Macedo considered whether he would actually
shoot the vendor. Because Pantoja had on several occasions
expressed displeasure with Macedo for not doing enough work for
the gang and questioned Macedo’s loyalty, Macedo decided to
shoot Clemente as directed. According to Macedo, he stepped out
of the video store and walked a few steps toward Clemente,
raised the gun with both hands, fired four shots at Clemente’s
head and then ran. At that time Macedo assumed he had killed
Clemente and did not know he had shot and killed the infant.
Another participant in the shooting incident, David
Gonzalez, also entered a plea agreement and testified for the
People. Gonzalez was at the pre-shooting meeting at the donut
shop. After the group left the shop, Murillo gave Macedo a gun.
Macedo told Gonzalez to wait for him and to take the gun after
the shooting. Gonzalez did as instructed and then gave the gun
to Velasquez.
2. Jury Instructions
With respect to the charge of murder, the trial court
instructed the jury, in part, with CALCRIM Nos. 500 (Homicide:
General Principles), 520 (First or Second Degree Murder with
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Malice Aforethought), 521 (First Degree Murder), 562
(Transferred Intent) and 563 (Conspiracy To Commit Murder).
In particular, CALCRIM No. 520 defined express malice and
implied malice; and CALCRIM No. 521 explained, “The
defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to
kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before committing the act that
caused death.” CALCRIM No. 521 also instructed, if the jury
decided the defendant had committed murder but the People had
not met their burden to prove beyond a reasonable doubt the
killing was first degree murder, the murder was of the second
degree.
CALCRIM No. 563 instructed, “The defendants are charged
in Count 7 with Conspiracy to commit Murder in violation of
Penal Code section 182. [¶] To prove that a defendant is guilty of
this crime, the People must prove that: [¶] 1. The defendant
intended to agree and did agree with one or more of the other
defendants or co-participants to intentionally and unlawfully kill;
[¶] 2. At the time of the agreement, the defendant and one or
more of the other alleged members of the conspiracy intended
that one or more of them would intentionally and unlawfully kill;
[¶] 3. One of the defendants or co-participants committed at least
one of the following overt acts alleged to accomplish the
killing . . . .”
The court’s instructions on the special circumstance
allegation included CALCRIM Nos. 705 (Special Circumstances:
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Circumstantial Evidence—Intent or Mental State) and 736
(Special Circumstances: Killing by Street Gang Members). This
latter instruction provided, “The defendant is charged with the
special circumstance of committing murder while an active
participant in a criminal street gang in violation of Penal Code
section 190.2(a)(22). [¶] To prove that this special circumstance
is true, the People must prove that: [¶] l. The defendant
intentionally killed [the infant]. [¶] 2. At the time of the killing,
the defendant was an active participant in a criminal street gang;
[¶] 3. The defendant knew that members of the gang engage in or
have engaged in a pattern of criminal gang activity; [¶] AND [¶]
4. The murder was carried out to further the activities of the
criminal street gang.”
As for aiding and abetting, the court instructed with
CALCRIM No. 400 (Aiding and Abetting: General Principles),
defining a “perpetrator” and explaining, “A person is equally
guilty of the crime whether he or she committed it personally or
aided and abetted the perpetrator who committed it. [¶] Under
some specific circumstances, if the evidence establishes aiding
and abetting of one crime, a person may also be guilty of other
crimes that occurred during the commission of the first crime.”
The court also instructed with CALCRIM No. 401 (Aiding and
Abetting: Intended Crimes), defining the elements of aiding and
abetting, including that the defendant knew the perpetrator
intended to commit the crime and specifically intended to
facilitate the commission of that crime. The court followed those
two instructions with CALJIC No. 3.02 (rather than CALCRIM
No. 402), explaining the natural and probable consequences
doctrine.
7
As given, CALJIC No. 3.02 provided, “One who aids and
abets another in the commission of a [crime] or [crimes] is not
only guilty of [that] [those] crimes, but is also guilty of any other
crime committed by a principal which is a natural and probable
consequence of the crimes originally aided and abetted. [¶] In
order to find the defendant guilty of the crimes of Murder as
charged in Count 1, Attempted Murder as charged in Count 2,
and Assault with a Semi-Automatic Firearm as charged in counts
3 and 4, you must be satisfied beyond a reasonable doubt that: [¶]
1. The crimes of [Simple Assault], [Assault with a Firearm],
and/or [Murder] were committed; [¶] 2. That the defendant aided
and abetted that/those crimes; [¶] 3. That a co-participant in that
crime committed the crimes of [Simple Assault], [Assault with a
Firearm], and/or [Murder]; and [¶] 4. The crimes of Murder,
Attempted Murder, and/or Assault with a Semi-Automatic
Firearm were a natural and probable consequence of the
commission of the crimes of [Simple Assault], [Assault with a
Firearm], and/or [Murder]. [¶] In determining whether a
consequence is ‘natural and probable,’ you must apply an
objective test . . . . [¶] You are not required to unanimously
agree as to which originally contemplated crime the defendant
aided and abetted, so long as you are satisfied beyond a
reasonable doubt and unanimously agree that the defendant
aided and abetted the commission of an identified and defined
target crime and that the crime of Murder, Attempted Murder,
and/or Assault with a Semi-automatic Firearm was a natural and
probable consequence of the commission of that target crime.”
With respect to conspiracy the court instructed in the
language of CALCRIM No. 417 (Liability for Coconspirators’
Acts): “A member of a conspiracy is criminally responsible for the
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crimes that he or she conspires to commit, no matter which
member of the conspiracy commits the crime. [¶] A member of a
conspiracy is also criminally responsible for any act of any
member of the conspiracy if that act is done to further the
conspiracy and that act is a natural and probable consequence of
the common plan or design of the conspiracy. This rule applies
even if the act was not intended as part of the original plan. . . .”
3. Verdict, Sentence and Appeal
The jury convicted Velasquez of first degree premeditated
murder, conspiracy to commit murder and two counts of assault
with a semiautomatic firearm with true findings on the firearm-
use and gang enhancement allegations, as well as the gang-
murder special circumstance pursuant to section 190.2,
subdivision (a)(22). He was found not guilty of attempted
extortion and conspiracy to commit extortion.
The court sentenced Velasquez to an indeterminate state
prison term of life without parole plus 25 years to life for murder
in the first degree with the special circumstance and the related
gun-use enhancement, plus two consecutive indeterminate terms
of 25 years to life for conspiracy to commit murder with the
firearm-use enhancement, plus a determinate sentence of
17 years eight months for the aggravated assault counts and
associated gang enhancements.
In Velasquez’s direct appeal with his codefendants Murillo
and Rangel, we rejected the argument there was insufficient
evidence to support the gang-murder special circumstance or the
finding the infant’s murder was committed for the benefit of a
criminal street gang within the meaning of section 186.22,
subdivision (b)(1), as well as various other claims of evidentiary,
instructional and sentencing error with one correction in
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Murillo’s sentence for conspiracy to commit extortion.
Velasquez’s judgment of conviction was affirmed. (People v.
Murillo, supra, B226736.)
5. Velasquez’s Section 1170.95 Petition for Resentencing
On January 29, 2019 Velasquez, representing himself, filed
a petition for resentencing under section 1170.95 and requested
the court appoint counsel to represent him in the resentencing
proceedings. The superior court appointed counsel, and the
prosecutor thereafter filed an opposition memorandum
challenging the constitutionality of section 1170.95. Velasquez’s
counsel filed a reply memorandum in support of the petition,
arguing the evidence was not sufficient to show that Velasquez
was a major participant in the crime who had acted with reckless
indifference to human life. The prosecutor responded with a
second opposition memorandum arguing Velasquez was ineligible
for resentencing because he had acted with an intent to kill and
directly aided and abetted the murder. Our opinion affirming
Velasquez’s convictions and the instructions from his trial were
attached as exhibits to the memorandum.
On August 4, 2020 the superior court found a prima facie
case had been established and issued an order to show cause why
resentencing relief should not be granted. (The court again
directed an order to show cause be issued on October 3, 2020.)
The hearing on the order to show cause was held on October 9,
2020.
No new evidence was presented by the prosecutor or
Velasquez at the hearing. After brief argument from counsel, the
court stated, “I’ll tell you where my thinking is going. . . . The
question is whether he can be tried under the present law at the
present time. He’s, to me, a clear aider and abettor. This is pre-
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planned. Everybody was together. He had a specific role of being
the lookout. And everybody had to participate in order to make it
come off. And that’s sort of where I’m headed at the present
time.”
In a written ruling filed November 5, 2020 the court denied
the petition. The court reasoned, “The jury convicted the
petitioner of premeditated murder in the first degree with the
special circumstance of murder while an active participant in a
street gang. He was also convicted of conspiracy to commit the
murder of the vendor.” The court quoted portions of the jury
instructions requiring a finding the petitioner had acted with the
intent to kill and wrote, “The closing argument reiterated that
defendant Velasquez acted with an intent to kill and directly
aided and abetted the murder, and not some lesser target crime
which led to the murder. . . . [¶] Additionally, the closing
arguments show that finding the premeditation and deliberation
enhancement true required finding the intent to kill. . . . [¶]
Further, the closing arguments show that finding the special
circumstance of murder while an active participant in a gang
required finding an intent to kill.”
The court’s ruling continued, “The testimony at trial
showed that: . . . Defendant Velasquez was present at the donut
shop for the plan to shoot and kill victim Clemente. Defendant
Velazquez was present as the gun was given to co-defendant
Macedo to use to kill victim Clemente. Velasquez was aware of
the dangers to life and knew that a gun would be used to shoot
and kill the street vendor in a crowded sidewalk. Defendant
Velasquez acted as a lookout while a fellow 18th Street gang
member attempted to shoot and kill victim Clemente on a
crowded sidewalk. [¶] After the shooting, defendant Velasquez’s
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actions are also consistent with directly aiding and abetting the
murder pursuant to the plan to kill the vendor. Defendant
Gonzalez received the gun from the shooter and immediately
gave it to defendant Velasquez to conceal it. [¶] Petitioner could
be found liable under the changes to P.C. 189, pursuant to
P.C. 189(E)(2). [¶] The person was not the actual killer, but,
with the intent to kill, aided, abetted, counsel, commanded,
induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree.”
Velasquez filed a timely notice of appeal.
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) substantially modified the law relating to accomplice
liability for murder, eliminating the natural and probable
consequences doctrine as it applies to aiding and abetting and
significantly narrowing the felony-murder exception to the malice
requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3);
People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); see People v.
Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) It also
authorized, through new section 1170.95, an individual convicted
of felony murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not have been convicted of murder because of Senate
Bill 1437’s changes to the definition of the crime. (See Lewis, at
p. 957; Gentile, at p. 843.)
If a petition for resentencing contains all the information
required by section 1170.95, subdivision (b)(1)(A)), the court must
12
appoint counsel to represent the petitioner, if requested; direct
the prosecutor to file a response to the petition; permit the
petitioner to file a reply; and determine if the petitioner has made
a prima facie showing he or she is entitled to relief. (§ 1170.95,
subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.) In
determining whether the petitioner has carried this burden, the
superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, at p. 971.)
Appellate opinions “are generally considered to be part of the
record of conviction” (id. at p. 972), as are the jury instructions
given at trial (see, e.g., People v. Soto (2020) 51 Cal.App.5th 1043,
1055, review granted Sept. 23, 2020, S263939).
The prima facie inquiry under section 1170.95,
subdivision (c), “is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, 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.” (Lewis,
supra, 11 Cal.5th at p. 971, internal quotation marks omitted];
see People v. Daniel (2020) 57 Cal.App.5th 666, 675, review
granted Feb. 24, 2021, S266336 [any error in denying petition at
prima facie stage without appointing counsel is harmless if the
record of conviction “conclusively demonstrates” petitioner is
ineligible for relief].)
13
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974;
but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review
granted Jan. 13, 2021, S265309.) The prosecutor and petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens. (See Gentile, supra,
10 Cal.5th at pp. 853-854.)
2. The Record of Conviction Establishes Velasquez Is
Ineligible for Resentencing as a Matter of Law
As discussed, in addition to instructions regarding
Velasquez’s liability for murder if the jury found he was a direct
aider and abettor of Macedo, the actual killer, the trial court
instructed with CALJIC No. 3.02, permitting Velasquez to be
convicted of murder under the natural and probable
consequences doctrine if he knowingly and intentionally aided
and abetted Macedo or another of his confederates in committing
an assault or aggravated assault on Clemente and a reasonable
person would know murder was the likely result of that crime.
Similarly, pursuant to CALCRIM No. 417 Velasquez could have
been convicted of conspiracy to commit murder if he conspired
with his confederates to commit an assault or aggravated assault
and the murder of the infant was a natural and probable
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consequence of the common plan or design of the crime Velasquez
conspired to commit. Those instructions on this now-invalid
alternative theory of accomplice liability were likely the basis for
the superior court’s finding that Velasquez had made a
prima facie showing of his entitlement to resentencing relief
under section 1170.95.
However, Velasquez’s jury found him guilty of first degree
murder after being instructed pursuant to CALCRIM No. 521
that this finding required the People to prove he had acted
willfully, deliberately and with premeditation, that is, with an
intent to kill (express malice). The verdict form specifically
stated that Velasquez “did unlawfully and with malice
aforethought murder [the infant].” The jury also found true the
gang-murder special circumstance, which required the People to
prove, among other elements under CALCRIM No. 736, that
Velasquez intentionally killed the infant (or, combined with
CALCRIM No. 401, as an aider and abettor he specifically
intended to assist the perpetrator in committing a gang-related
murder).4 The verdict form for the special-circumstance finding
recited that Velasquez “intentionally killed the victim while the
defendant was an active participant in a criminal street gang.”
Based on its verdict and these findings the jury necessarily
found Velasquez had acted with a specific intent to kill, express
malice, as a direct aider and abettor—a valid theory of accomplice
liability for murder under amended sections 188 and 189—
4 In connection with the gang-related special-circumstance
allegation, the trial court had also instructed with CALCRIM
No. 705, which advised the jury a true finding required the
People to prove Velasquez had acted with the mental state
described in CALCRIM No. 736.
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notwithstanding the instructions on the natural and probable
consequences doctrine. As such, Velasquez is ineligible for
resentencing under section 1170.95 as a matter of law. (See
People v. Soto, supra, 51 Cal.App.5th at p. 1055, review granted
[where jury instructions required a finding of malice, defendant
was ineligible for relief as a matter of law]; see also People v.
Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted
Mar. 18, 2020, S260493 [the record of conviction might include
information “that establishes the petitioner is ineligible for relief
as a matter of law because he or she was convicted on a ground
that remains valid notwithstanding Senate Bill 1437’s
amendments to sections 188 and 189”].) Any error in the
superior court’s application of the proper standard of proof at the
evidentiary hearing was harmless:5 There is no reasonable
probability a more favorable result would have been obtained if
the correct standard of proof had been used. (See Lewis, supra,
11 Cal.5th at pp. 973-974 [applying People v. Watson (1956)
46 Cal.2d 818 state law standard of prejudice to procedural errors
in assessing whether petitioner had made a prima facie showing
of eligibility for resentencing relief].)
5 We agree with Velasquez the superior court’s ruling he
“could be found liable under the changes to P.C. 189” and the
absence of any reference to proof beyond a reasonable doubt
suggest the superior court did not understand its responsibility to
act as an independent factfinder and evaluate the evidence of his
continued liability for murder under that standard, as held in
People v. Rodriguez, supra, 58 Cal.App.5th at page 230, review
granted, and People v. Lopez, supra, 56 Cal.App.5th at page 949,
review granted. The Attorney General essentially concedes this
point, although arguing any error was harmless.
16
Velasquez disputes this analysis, noting that prior to
People v. Chiu (2014) 59 Cal.4th 155 a defendant could be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine. Thus, Velasquez argues, the
first degree murder verdict in his case does not necessarily mean
the jury found he had acted with express malice.6 However, as
the Attorney General explains, in Chiu the jury was instructed,
to find the defendant guilty of first degree murder under the
natural and probable consequences doctrine, it only had to find
the perpetrator acted willfully and with premeditation in
committing the nontarget offense of murder. (Id. at p. 161.)
Here, CALCRIM No. 521, as given, instructed the jury that, if it
found any of the defendants guilty of murder (under any of the
theories presented), to then find the defendant guilty of first
degree, rather than second degree, murder, the jury had to find
the defendant—not simply the shooter—acted willfully and with
premeditation.7 (Cf. People v. Stevenson (2018) 25 Cal.App.5th
6 Although not outcome determinative, Velasquez has not
obtained (and apparently has not sought) habeas relief on the
basis of Chiu error. (Cf. In re Martinez (2017) 3 Cal.5th 1216,
1218 [“on a petition for writ of habeas corpus, as on direct appeal,
Chiu error requires reversal unless the reviewing court concludes
beyond a reasonable doubt that the jury actually relied on a
legally valid theory in convicting the defendant of first degree
murder”].)
7 In contrast to the first degree murder instruction, which
required a finding that each defendant had acted willfully and
with premeditation, the attempted murder instruction permitted
the jury to find a defendant guilty of attempted willful, deliberate
and premeditated murder if “the defendant and/or Giovanni
Macedo” acted with the requisite intent.
17
974, 984 [no Chiu error because modified CALCRIM No. 521 as
given required the jury to base its finding of first degree murder
on defendant’s deliberation and premeditation, not
perpetrator’s].)
Velasquez also fails in his attempt to negate the express
malice finding included in the gang-murder special circumstance.
Velasquez argues there was no evidence at trial he intended to
kill the infant victim, as required by the special circumstance
instructions. But the jury was properly instructed on transferred
intent, and the Supreme Court in People v. Shabazz (2006)
38 Cal.4th 55, 64-66, held the transferred intent doctrine applies
to the gang-murder special circumstance.
DISPOSITION
The postjudgment order denying Velasquez’s motion for
resentencing under section 1170.95 is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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