Filed 11/30/21 P. v. Nava CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B311543
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA361088)
v.
RICARDO NAVA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Eleanor J. Hunter, Judge. Affirmed.
James Koester, 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, Assistant
Attorney General, Amanda V. Lopez and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Ricardo Nava appeals from the
denial of his petition for resentencing pursuant to Penal Code
section 1170.95.
We affirm.
BACKGROUND
In October 2010, defendant was found guilty, along with his
codefendant Bryant Rodezno, of the first degree murder of Edwin
Catalan, a rival gang member. (Pen. Code, § 187, subd. (a).)
Gang and firearm use allegations were found true. Defendant
was sentenced to 50 years to life in prison. He received 775 days
of presentence custody credits.
In an unpublished decision, we affirmed defendant’s and
Rodezno’s convictions. (People v. Rodezno (Dec. 21, 2012,
B234852) [nonpub. opn.].) The main evidence against defendant
came from the testimony of Stephanie Avilez-Gomez, an
accomplice who testified pursuant to a plea agreement. Gomez
testified that she, defendant and Rodezno were “White Fence
gang members and she was often the driver for gang members
committing crimes. The White Fence gang believed that Drowsy
[victim Edwin Catalan] from rival gang La Mirada Locos had
killed a White Fence gang member, and they wanted to kill
Drowsy. . . . Gomez, [Rodezno and defendant] got into Gomez’s
white Tahoe, and another gang member handed Rodezno a gun
wrapped in a sweater. [Rodezno and defendant] told Gomez
where to drive and to turn on Westmoreland, in La Mirada Locos
gang territory. Then [defendant] told Gomez to stop the car. . . .
[Rodezno and defendant] got out and crossed the street, Gomez
heard gunshots, [Rodezno and defendant] ran back to the car and
got in, [defendant] told Gomez to go (‘ “[g]o or it’s your ass, too” ’),
and Gomez sped away. [¶] Gomez testified that, as they drove
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away, [Rodezno] said he shot a guy in the chest three times and
tried to shoot him in the head, but the gun jammed or ran out of
bullets. [Defendant] said he had kicked the guy in the face. Both
were excited and bragging. [Defendant] asked Rodezno if they
got the right person, and Rodezno said yes, that it was Drowsy
from La Mirada.” (People v. Rodezno, supra, B234852.)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In December 2018, defendant filed in propria persona a
form petition for resentencing pursuant to Penal Code
section 1170.95. Defendant checked the boxes stating he was
convicted on a theory of felony murder or under the natural and
probable consequences doctrine, that he was not the killer, not a
major participant, did not act with the intent to kill and could not
now be convicted of murder under the amended provisions of
sections 188 and 189.
The court appointed counsel for defendant. The People
filed a response and a supplemental response. Defendant,
through counsel, filed a reply.
On January 28, 2021, the court denied defendant’s petition
in a written order without issuing an order to show cause, finding
defendant had failed to state a prima facie case for relief. The
court said that in addition to the parties’ briefing, it had
considered the record of conviction, including the jury
instructions and the appellate opinion from the direct appeal.
The court explained that defendant’s jury had not been instructed
with felony murder or the natural and probable consequences
doctrine, and since defendant was convicted on a direct aiding
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and abetting theory, he was ineligible for relief as a matter of
law.
Defendant appealed.
Respondent requested we take judicial notice of the jury
instructions and verdict form from the superior court file. We
grant respondent’s request.
DISCUSSION
In amending the law regarding vicarious murder liability,
Senate Bill 1437 created a specific procedure “for retroactive
application of its ameliorative provisions. [Penal Code]
[s]ection 1170.95 lays out a process for a person convicted of
felony murder or murder under a natural and probable
consequences theory to seek vacatur of his or her conviction and
resentencing.” (People v. Gentile (2020) 10 Cal.5th 830, 853,
italics added.)
Defendant concedes in his briefing to this court that the
jury was not instructed with felony murder or the natural and
probable consequences doctrine. The record establishes no such
instructions were given and that defendant was convicted of first
degree murder on a direct aiding and abetting theory.
Defendant nonetheless contends he is eligible for relief
because of confusing language in the aiding and abetting
instructions given to the jury, specifically CALCRIM former
No. 400. In 2010, defendant’s jury was instructed with
CALCRIM former No. 400 which contained the following
language which has since been removed: “A person is equally
guilty of the crime whether he committed it personally or aided
and abetted the perpetrator who committed it.”
Defendant denies he is making a claim of instructional
error that should have been raised on direct appeal. A claim of
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instructional error is not cognizable in a petition pursuant to
Penal Code section 1170.95.
Rather, defendant contends that because the jury was
instructed with the “equally guilty” language, it is not possible to
conclude as a matter of law that the jury necessarily found him
guilty based on his own mental state, as opposed to that of
Rodezno, the shooter, as is now required under the amended
murder statutes. (Pen. Code, § 188, subd. (a)(3) [“Malice shall not
be imputed to a person based solely on his or her participation in
a crime.”].)
This contention is a nonstarter because Penal Code
section 1170.95 applies only to those persons “convicted of felony
murder or murder under the natural and probable consequences
doctrine.” (§ 1170.95, subd. (a); People v. Gentile, supra, 10
Cal.5th at p. 853.)
Defendant’s argument also fails to acknowledge that the
Supreme Court in People v. Johnson (2016) 62 Cal.4th 600
concluded that CALCRIM No. 401 precluded the jury from being
misled. It is undisputed here that defendant’s jury was also
instructed with CALCRIM No. 401. Johnson explained that
CALCRIM No. 401 told the jury “that for them to find defendant
guilty of murder as an aider and abettor the prosecution must
prove that defendant knew [the direct perpetrator] intended to
kill [the victim], that he intended to aid and abet [the direct
perpetrator] in committing the killing, and that he did in fact aid
him 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, at p. 641.)
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DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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