Filed 4/25/22 P. v. Cornejo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092109
Plaintiff and Respondent, (Super. Ct. No. 11F00582)
v.
JESSE CORNEJO,
Defendant and Appellant.
Defendant Jesse Cornejo appeals from the trial court’s order denying his petition
for resentencing pursuant to Penal Code section 1170.951 and Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant argues the trial court incorrectly
concluded he was ineligible for relief under former section 1170.95. In supplemental
briefing, defendant expands upon this argument, contending that the passage of Senate
1 Subsequent undesignated statutory references are to the Penal Code.
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Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) requires reversal and remand for a
hearing on whether he has made a prima facie case under amended section 1170.95,
subdivision (c). We agree with the trial court that defendant was ineligible for relief as a
matter of law. Under these circumstances, we conclude the failure to hold a hearing
prior to denying defendant’s petition, as now required by the passage of Senate Bill 775,
is harmless as a matter of law. Accordingly, we affirm the trial court’s order.
BACKGROUND
A. The Underlying Conviction
For expediency, we will incorporate relevant information from the published
opinion in defendant’s prior appeal, People v. Cornejo (2016) 3 Cal.App.5th 36
(Cornejo):
“Deandre Ellison was shot to death as he drove into his driveway in the Del Paso
Heights neighborhood of Sacramento. Four other men, including Latrele Neal, were also
in Ellison’s car. Before the car came to a stop in the driveway, an SUV driven by Jesse
Cornejo slowly drove past Ellison’s house; the SUV’s front and backseat passengers,
Adam Cornejo and Isaac Vasquez, opened fire on Ellison’s car. Neal managed to return
fire with Ellison’s gun before the SUV drove away. About 20 bullets were exchanged
between the vehicles. Bullets also struck Ellison’s house. Ellison was the only casualty.
After crashing the SUV while being pursued by law enforcement, Adam, Jesse, and Isaac
were taken into custody a short time later. Each was a Norteño gang member. Isaac was
16 years old with a developmental disability; Adam and Jesse were 17 and 18 years old,
respectively.
“Adam, Jesse, and Isaac were tried together and convicted by jury of one count of
second degree murder (Pen. Code, § 187; Count One), four counts of attempted murder
(§§ 664, 187; Counts Two, Three, Four, and Five), and one count of shooting at an
inhabited dwelling (§ 246; Count Six). Jesse was also convicted of one count of driving
in willful or wanton disregard for safety while fleeing from a pursuing peace officer.
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(Veh. Code, § 2800.2, subd. (a); Count Seven.) With respect to the murder, the jury
found the offense was committed by means of shooting a firearm from a motor vehicle at
another person outside the vehicle with the intent to inflict great bodily injury. (§ 190,
subd. (d).) The jury also found the crimes were committed for the benefit of, at the
direction of, or in association with, a criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by gang members. (§ 186.22,
subd. (b).) Various firearm enhancement allegations were also found to be true. (Former
§§ 12022.53, subds. (c), (d), (e)(1), 12022.5, subd. (a).) The trial court sentenced Adam
and Isaac to serve aggregate indeterminate prison terms of 120 years to life plus
consecutive determinate terms of nine years four months. Jesse was sentenced to serve
the same indeterminate term of 120 years to life plus a consecutive determinate term of
10 years.” (Cornejo, supra, 3 Cal.App.5th at pp. 41-42, fns. omitted.)
On appeal, we reversed the gang enhancement findings and firearm enhancements
that were dependent on those findings. We otherwise upheld defendant’s convictions and
judgment. (Cornejo, supra, 3 Cal.App.5th at pp. 43-44, 75.) Defendant’s ultimate
sentence after appeal was for 20 years to life for the murder plus an aggregate
determinate term of 10 years.
B. The Section 1170.95 Petition
On February 28, 2019, defendant’s attorney filed a petition for resentencing
pursuant to former section 1170.95 arguing he had been convicted of second degree
murder under a natural and probable consequences theory, and thus, was eligible for
relief. The People opposed this petition, arguing in pertinent part, that defendant had
been tried as a direct aider and abettor, and therefore, was ineligible for relief.
In reply, defendant argued he had been tried and the jury instructed on a natural
and probable consequences theory. He reasoned the amended information charged
murder and attempted murder occurring by drive-by shooting, that he had been driving
the car that the shots had been fired from, and the jury had been instructed on “implied
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malice,” which required the jury to find “[t]he natural and probable consequences of the
act were dangerous to human life.” (Italics & boldface omitted.)2 Defendant argued he
could not now be convicted of second degree murder because he was not the actual killer,
did not act with intent to kill, and did not act with reckless indifference to human life. He
further argued that Senate Bill 1437 applied to attempted murder, and he should be
granted relief as to the four attempted murder counts.
C. The Trial Court’s Ruling
On May 21, 2020, the trial court denied defendant’s petition without issuing an
order to show cause and without holding an evidentiary hearing. The court’s written
ruling explained:
“Penal Code [section] 1170.95[, subdivision ](a) provides that ‘[a] person
convicted of felony murder or murder under a natural and probable consequences theory
may file a petition with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated . . . .’ Defendant Jesse Cornejo is not such a person, as
defendant Jesse Cornejo’s jury was not instructed on either theory with regard to murder
or attempted murder.
“Rather, defendant Jesse Cornejo’s jury was instructed with: (1) CALCRIM
No. 401, on direct aiding and abetting, (2) CALCRIM No. 520 on malice aforethought
murder, (3) CALCRIM No. 521 on first degree murder (of which defendant Jesse
Cornejo was found not guilty), (4) CALCRIM No. 525 on the punishment provision of
Penal Code [section] 190[, subdivision ](d) for a drive-by shooting committed with intent
to inflict great bodily injury, for consideration after already being found guilty of second
2 As recounted in defendant’s reply brief, CALCRIM No. 520 stated: “The defendant
acted with implied malice if: [¶] (1) He intentionally committed an act; [¶] (2) The
natural and probable consequences of the act were dangerous to human life; [¶] (3) At
the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] (4) He
deliberately acted with conscious disregard for human life.” (Italics & boldface omitted.)
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degree murder, and (5) CALCRIM No. 600 on attempted murder, as requiring a direct act
toward the killing and intent to kill that person. None of these instructions contained
language pertaining either to felony murder or the natural and probable consequences
doctrine of accomplice liability.[3]
“Defendant Jesse Cornejo’s counsel nevertheless argues that the jury was
instructed on the natural and probable consequences doctrine in the CALCRIM No. 520
implied malice jury instruction that was given.
“Counsel is mistaken. [Senate Bill] 1437 did not abrogate implied malice, the jury
instruction for which does contain the words ‘natural and probable consequence’ but in a
different context from that of the natural and probable consequences doctrine of
accomplice liability. Rather, [Senate Bill] 1437 abrogated only the theory of accomplice
liability that is based on the defendant intending to aid and abet an accomplice in the
commission of a lesser offense, the natural and probable consequence of which would be
murder in the specific case. Defendant Jesse Cornejo’s jury was not instructed on the
latter. [Senate Bill] 1437 did not amend the language now embodied in Penal Code
[section] 188[, subdivision ](a)(2), which continues to define ‘implied malice’ as being
‘when no considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.’ As that language was not amended, the
case law that has interpreted those words has not been amended, thus the continuing
validity of CALCRIM No. 520 has not been affected by [Senate Bill] 1437.
“With regard to defendant Jesse Cornejo’s attempted murder convictions, as the
jury also was not instructed on either felony murder (which is inapplicable to attempted
murder) or the natural and probable consequences doctrine of accomplice liability, he
3 We grant respondent’s request to incorporate the appellate record in defendant’s
previous appeal, case No. C072053. Our review of the jury instructions in that record
confirms the accuracy of the trial court’s representations concerning those instructions.
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similarly is not a person to whom Penal Code [section] 1170.95 applies. As such, the
court need not decide whether any defendant convicted of attempted murder is
categorically precluded from seeking relief under Penal Code [section] 1170.95.”
Defendant timely appealed.
DISCUSSION
A. Background
In 2018, the Legislature enacted Senate Bill 1437 which amended section 188 to
require proof of personal malice aforethought in all murder convictions (§ 188, subd.
(a)(3), as amended by Stats. 2018, ch. 1015, § 2), except in cases prosecuted under the
felony murder rule. (§§ 188, subd. (a)(3), 189, subd. (e).) “The effect of the new law
was to eliminate liability for murder under the natural and probable consequences
doctrine.” (People v. Offley (2020) 48 Cal.App.5th 588, 594; see also People v. Gentile
(2020) 10 Cal.5th 830, 838-839 [caselaw and Sen. Bill 1437 have eliminated the natural
and probable consequence’s applicability to murder in the first and second degree].) The
criminal liability of direct aiders and abettors did not change under Senate Bill 1437.
(Offley, at pp. 595-596.) The legislation also enacted section 1170.95, which provides a
mechanism allowing a petitioner to request vacatur of a murder conviction where that
petitioner could not have been convicted of murder under the new law. It further
provides for resentencing of those petitioners who were so convicted. (Stats. 2018,
ch. 1015, § 4; Gentile, at p. 843.)
At the time the trial court considered defendant’s petition, section 1170.95 did not
expressly permit a petition for resentencing on convictions for attempted murder.
(§ 1170.95, former subd. (a).) However, Senate Bill 775 amended subdivision (a) of
section 1170.95 to read, in pertinent part: “A person convicted of . . . attempted murder
under the natural and probable consequences doctrine . . . may file a petition with the
court that sentenced the petitioner to have the petitioner’s . . . attempted murder . . .
conviction vacated and to be resentenced on any remaining counts . . . .” (Stats. 2021,
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ch. 551, § 2.) Senate Bill 775 became effective January 1, 2022 (Cal. Const., art. IV,
§ 8). Thus, certain petitioners convicted of attempted murder are now eligible to seek
relief under section 1170.95.
Section 1170.95, subdivisions (b) and (c) create a two-step process for evaluating
a petitioner’s eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962
(Lewis).) First, the trial court determines whether the petition is facially sufficient under
section 1170.95, subdivision (b). (Lewis, at p. 960.) If the petition is facially sufficient,
then the trial court moves on to subdivision (c), appointing counsel (if requested) and
following the briefing schedule set out in the statute. (Lewis, at p. 966.) Following the
completion of this briefing, the trial court holds a hearing and determines whether the
petitioner has made a prima facie showing he or she is entitled to relief. (Ibid.;
§ 1170.95, subd. (c).)
As the Supreme Court explained, “[w]hile the trial court may look at the record of
conviction after the appointment of counsel to determine whether a petitioner has made a
prima facie case for section 1170.95 relief, the prima facie inquiry under 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.” ’ [Citation.] ‘[A] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citation.] ‘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.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.)
“To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
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evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)” (People v. Porter (2022) 73 Cal.App.5th 644, 651.)
B. Analysis
Here, the trial court denied defendant’s petition at the section 1170.95, subdivision
(c) stage after determining that defendant was not tried under a theory eligible for relief
under Senate Bill 1437 and former section 1170.95. Rather, defendant’s convictions for
murder and attempted murder were premised upon direct aider and abettor liability.
Defendant argues this was error because the jury was instructed with the phrase
“natural and probable consequences” in the jury instruction pertaining to implied malice,
and thus, he argues the jury was instructed on the natural and probable consequences
doctrine. This argument is not persuasive because it conflates implied malice (a direct
liability theory) with indirect liability (formerly available via the natural and probable
consequences doctrine).
By its terms, only “[a] person convicted of felony murder or 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, attempted
murder under the natural and probable consequences doctrine, or manslaughter” is
eligible for relief under section 1170.95. (§ 1170.95, subd. (a).) Here, the record of
conviction, specifically the jury instructions, show that the jury was not instructed on the
felony-murder or natural and probable consequences theory, nor any other theory under
which malice might be imputed based solely on defendant’s participation in a crime.
Rather, the jury instructions show that defendant was prosecuted and convicted of second
degree murder based on a theory of implied malice.
Direct, but implied malice and indirect liability according to the natural and
probable consequences doctrine are distinct concepts, requiring different mental states.
(See People v. Soto (2020) 51 Cal.App.5th 1043, 1056-1057.) “The California Supreme
Court has made clear that a ‘direct’ aider and abettor must—at a minimum—share in the
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mens rea of the actual perpetrator, whereas an ‘indirect’ aider and abettor (i.e., one whose
liability is premised on the natural and probable consequences doctrine) need only intend
to aid a different, less serious ‘target’ crime, than the consequent crime.” (Id. at p. 1057,
citing People v. Chiu (2014) 59 Cal.4th 155, 158-159, 161-162, 171-172.) As we have
explained, “Senate Bill No. 1437 changed the circumstances under which a person could
be convicted of murder without a showing of malice,[4] but it did not exclude from
liability persons convicted of murder for acting with implied malice.” (Soto, at p. 1057,
italics added.)
Accordingly, while we acknowledge that the implied malice instruction used the
words “natural and probable consequence,” this use does not afford individuals convicted
under a direct implied malice theory, the ability to obtain relief under section 1170.95.
(People v. Soto, supra, 51 Cal.App.5th at pp. 1050, 1055-1059 [jury instructions proved
as a matter of law that the getaway driver (defendant) was ineligible to obtain relief for
his second degree murder conviction under § 1170.95 where he was convicted on a
direct, implied malice theory].) Given the instructions in this matter, the jury necessarily
found defendant was a direct aider and abettor to second degree murder, who had acted
with implied malice. Accordingly, defendant is ineligible for relief as a matter of law.
(Soto, at p. 1057.)
Under these circumstances, the trial court’s failure to hold a hearing as required
under amended section 1170.95, subdivision (c) is harmless, as defendant cannot show it
is reasonably probable that he would have obtained an order to show cause in the absence
4 Section 188 now directs that for purposes of murder, “malice may be express or
implied.” (§ 188, subd. (a).) “Malice is implied when no considerable provocation
appears, or when the circumstances attending the killing show an abandoned and
malignant heart.” (§ 188, subd. (a)(2).) Except as stated in the codification of the felony
murder rule, “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.” (§ 188, subd. (a)(3), italics added.)
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of the trial court’s error. (Lewis, supra, 11 Cal.5th at pp. 972-974; Porter, supra, 73
Cal.App.5th at p. 651.) And because defendant was prosecuted as a direct aider and
abettor on the attempted murder counts, we further find defendant’s attempted murder
convictions are ineligible for relief regardless of the passage of Senate Bill 775. As with
defendant’s murder conviction, the record forecloses defendant’s ability to show that he
is eligible for relief under amended section 1170.95, and thus, any error in not holding a
hearing prior to denying defendant’s petition as required by amended section 1170.95
was harmless. (Lewis, at pp. 972-974; Porter, at p. 651.)
DISPOSITION
The judgment is affirmed.
/s/
HOCH, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/
MURRAY, J.*
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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