Filed 5/23/22 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093331
Plaintiff and Respondent, (Super. Ct. No. 11F00582)
v.
ADAM CORNEJO,
Defendant and Appellant.
Defendant Adam Cornejo appeals from the trial court’s order denying his petition
for resentencing under Penal Code section 1170.95.1 Defendant argues he was convicted
of murder and attempted murder under the natural and probable consequences doctrine
based on the language in the trial court’s jury instruction on implied malice and was thus
1 Undesignated statutory references are to the Penal Code.
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eligible for relief under the statute. In supplemental briefing, defendant further contends
that the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) requires
reversal and remand for a hearing on whether he stated a prima facie case under amended
section 1170.95, subdivision (c). We will affirm the trial court’s order.
BACKGROUND
In 2012, a jury found defendant guilty of one count of second degree murder
(§ 187; count one), four counts of attempted murder (§§ 664, 187; counts two through
five), and one count of shooting at an inhabited dwelling (§ 246; count six). (People v.
Cornejo (2016) 3 Cal.App.5th 36, 42 (Cornejo).) The jury found the murder was
committed by shooting a firearm from a motor vehicle at another person outside the
vehicle with the intent to inflict great bodily injury (§ 190, subd. (d)). (Cornejo, at p. 42.)
“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).)” (Ibid.)
In our opinion deciding defendant’s direct appeal, we summarized the facts of the
case.2 In short, the victim, along with four companions, was in his wife’s car returning to
his house from the store. (Cornejo, supra, 3 Cal.App.5th at pp. 44-45.) “Before the car
came to a stop in the driveway, an SUV driven by [codefendant] Jesse Cornejo slowly
drove past [the victim’s] house; the SUV’s front and backseat passengers, [defendant]
and Isaac Vasquez, opened fire on [the victim’s] car. Neal [(a passenger in the victim’s
2 We incorporate this opinion by reference as part of defendant’s record of conviction
(People v. Woodell (1998) 17 Cal.4th 448, 456), which the trial court could consider in its
prima facie review. (People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).)
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car)] managed to return fire with [the victim’s] gun before the SUV drove away. About
20 bullets were exchanged between the vehicles. Bullets also struck [the victim’s] house.
[The victim] was the only casualty.” (Id. at pp. 41-42, fn. omitted.) Defendant and
codefendants were apprehended shortly thereafter, and gunshot residue tests
“corroborated the fact that [defendant] and Isaac were the shooters, while Jesse drove the
Explorer.” (Id. at p. 46.)
On appeal, defendant challenged, among other issues, the jury instruction on
murder, CALCRIM No. 520, saying the court read an outdated bracketed section of the
instruction. As relevant here, a portion of the jury instruction explained the concept of
implied malice, saying, “ ‘A defendant acted with implied malice if, one, he intentionally
committed an act. [¶] Two, the natural and probable consequences of that act are
dangerous to human life. Three, at the time he acted, he knew his act was dangerous to
human life, and, four, he deliberately acted with conscious disregard for human life.’ ”3
(Cornejo, supra, 3 Cal.App.5th at p. 59, fn. 6.) We rejected defendant’s challenge,
explaining, “there was no dispute [the victim] died of a single gunshot wound. This was
the direct, but-for cause of death. Overwhelming evidence established both [defendant]
and Isaac fired into [the victim’s] car. Who fired the fatal shot is irrelevant. As our
Supreme Court explained: ‘A person can proximately cause a gunshot injury without
personally firing the weapon that discharged the harm-inflicting bullet. For example, in
People v. Sanchez [(2001)] 26 Cal.4th 834, two persons engaged in a gun battle, killing
an innocent bystander. Who fired the fatal bullet, and thus who personally inflicted the
harm, was unknown, but we held that the jury could find that both gunmen proximately
caused the death. (Id. at pp. 848-849.)’ (People v. Bland (2002) 28 Cal.4th 313, 337.)
3 The implied malice portion of the instruction was not part of defendant’s challenge in
the direct appeal, which centered on the issue of proximate causation.
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The same is true here . . . the jury properly concluded both [defendant] and Isaac
proximately caused the death regardless of who fired the fatal shot. . . . As for Jesse,
liability for murder turned on principles of aiding and abetting, on which the jury was
appropriately instructed.” (Id. at pp. 61-62.) We ultimately reversed the gang
enhancement findings, along with the firearm enhancements predicated on the gang
enhancement findings, based on People v. Prunty (2015) 62 Cal.4th 59, and affirmed the
judgment as modified. (Cornejo, at pp. 43, 75.)
In 2019, defendant, through counsel, filed a petition for resentencing under
section 1170.95. In the petition, defendant alleged he met the requirements for relief,
specifically, that (1) an information filed against him allowed the prosecution to proceed
under a theory of murder under the natural and probable consequences doctrine, (2) he
was convicted of second degree murder under the natural and probable consequences
doctrine, and (3) he could not now be convicted of first or second degree murder because
of changes to sections 188 and 189, effective January 1, 2019. The court received
briefing from the parties. Defendant argued section 1170.95 applied to him because
“[t]he prosecution proceeded against [him] on a natural and probable consequence theory,
to wit, implied malice,” and noted that the implied malice jury instruction required
defendant to commit an act “[t]he natural and probable consequences” of which “were
dangerous to human life.” (Italics & boldface omitted.) Defendant further argued
section 1170.95 applied to his convictions for attempted murder.
The trial court issued a written order denying the petition. The court cataloged the
relevant jury instructions at trial, saying the “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 Adam
Cornejo was found not guilty), (4) CALCRIM No. 525 on the punishment provision of
[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 degree
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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.”4
Noting defendant’s argument as to the implied malice instruction in CALCRIM
No. 520, the court explained “[Senate Bill No.] 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 No.] 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 different, target offense, the natural and probable
consequence of which would be murder in the specific case. Defendant Adam Cornejo’s
jury was not instructed on the latter.” And, as to defendant’s attempted murder
convictions, the court stated, “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, [so defendant] similarly is not a person to whom
[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
[section] 1170.95.” The court thus denied the petition.
4 We grant the People’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 the instructions.
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DISCUSSION
A. Governing Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which became
effective on January 1, 2019, was enacted to amend the felony-murder rule and the
natural and probable consequences doctrine “to ensure that murder liability is not
imposed on a person who [was] 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill
amended section 188 to require that a principal act with express or implied malice and
amended section 189 to state that a person can only be liable for felony murder if (1) the
“person was the actual killer”; (2) the person was an aider or abettor in the commission of
murder in the first degree; or (3) the “person was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189, subd. (e), as amended
by Stats. 2018, ch. 1015, §§ 2, 3.) “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 [case law and Senate Bill 1437 have eliminated the natural and probable
consequences doctrine’s applicability to murder in the first and second degree].)
Senate Bill 1437 also added section 1170.95 to provide the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences theory.”5 (§ 1170.95, former subd. (a).) As amended, subdivision (a)
allows a petitioner to “file a petition with the court that sentenced the petitioner to have
5 More recently, Senate Bill 775, which became effective January 1, 2022, made various
amendments to section 1170.95. (Stats. 2021, ch. 551, § 2.) Defendant requested, and
was granted, an opportunity to submit supplemental briefing on these amendments.
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the petitioner’s murder [or] attempted murder . . . conviction vacated and to be
resentenced . . . when all of the following conditions apply: [¶] (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 attempted murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of murder [or] attempted
murder . . . following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could have been convicted of murder or attempted murder. [¶] (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.” (§ 1170.95, subd. (a).)
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 include those convicted of “attempted murder under the natural and
probable consequences doctrine.” (Stats. 2021, ch. 551, § 2.) Thus, certain petitioners
convicted of attempted murder are now eligible to seek relief under section 1170.95.
After a defendant submits a petition, the court must decide whether the defendant
has stated a prima facie case for eligibility. (§ 1170.95, subd. (c).) As explained by our
Supreme Court in Lewis, supra, 11 Cal.5th at page 966, “section 1170.95, subdivision (c)
does not envision a structure by which courts can make an initial determination without
briefing and without the appointment of counsel. Instead, there is a much more logical
interpretation of this provision, and it is the one we adopt here: a complying petition is
filed; the court appoints counsel, if requested; the issue is briefed; and then the court
makes one (not two) prima facie determination.” (Fn. omitted.)
To determine whether a petitioner has made a prima facie case for relief, 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
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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.)
B. Defendant’s Eligibility for Relief
Defendant argues the trial court incorrectly denied his petition because he was
prosecuted and convicted under the natural and probable consequences doctrine. In
particular, defendant cites the jury instruction on implied malice from his trial, which
included the requirement that “[t]he natural and probable consequences of the act were
dangerous to human life,” and concludes the jury was instructed on the natural and
probable consequences doctrine. (Italics & boldface omitted.) Defendant further argues
his attempted murder convictions are not categorically barred from relief under
section 1170.95, particularly in light of Senate Bill 775. We see no merit in defendant’s
arguments.
Section 1170.95 applies to those convicted of felony murder or murder under the
natural and probable consequences doctrine. (§ 1170.95, subd. (a).) Defendant is
incorrect that the “natural and probable consequences” language from CALCRIM
No. 520 demonstrates he was prosecuted under that doctrine. Rather, the jury
instructions from defendant’s trial show that defendant was prosecuted and convicted
under a theory of implied malice. A person acts with implied malice “when a person
willfully does an act, the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious disregard for the danger to life
that the act poses.” (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) Mirroring this
language from case law, defendant’s jury instruction on implied malice included the
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phrase “natural and probable consequences.” (Cornejo, supra, 3 Cal.App.5th at p. 59,
fn. 6.)
However, the instruction’s use of this phrase is separate and distinct from the
natural and probable consequences doctrine. “Although the instructions related to
implied malice and the natural and probable consequences doctrine of aiding and abetting
include similar language . . . they are distinctly different concepts. Implied malice is a
mental state for the commission of the crime of second degree murder, either by the
principal or as an aider and abettor.” (People v. Soto (2020) 51 Cal.App.5th 1043, 1056.)
“The natural and probable consequence doctrine, by contrast, is a theory of liability by
which an aider and abettor who intends to aid a less serious crime can be convicted of a
greater crime. This doctrine comes into play when ‘an accomplice assists or encourages
a confederate to commit one crime, and the confederate commits another, more serious
crime (the nontarget offense).’ [Citation.]” (Id. at p. 1058.) “[W]hen the prosecutor
relies on the natural and probable consequence doctrine as to a defendant charged as an
aider and abettor, the trial court must give an instruction ‘ “identify[ing] and describ[ing]
the target crimes that the defendant might have assisted or encouraged.” ’ ” (People v.
O’Malley (2016) 62 Cal.4th 944, 989.) Thus, the use of the phrase “natural and probable
consequences” in the implied malice jury instruction does not mean that defendant was
convicted under the natural and probable consequences doctrine, which would require
specific jury instructions not given here.
Defendant further contends the trial court erred when it denied his petition as to
his attempted murder convictions because Senate Bill 1437 “bars natural and probable
consequences as a theory of liability for attempted murder as well as murder.” In
supplemental briefing, defendant points to Senate Bill 775’s amendments to
section 1170.95 to establish his eligibility for relief.
As the trial court explained, however, it does not matter whether section 1170.95
permits relief for attempted murder convictions under the natural and probable
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consequences doctrine because defendant’s attempted murder convictions were not based
on the natural and probable consequences doctrine. Defendant’s jury did not receive
instructions on the natural and probable consequences doctrine, and were instead
instructed on attempted murder using CALCRIM No. 600, which requires a direct step
toward killing the victim, coupled with the intent to kill the victim. And, as explained
above, the implied malice portion of CALCRIM No. 520 was not an instruction on the
natural and probable consequences doctrine. The jury could not have convicted
defendant using a theory on which it was never instructed. (People v. Soto, supra,
51 Cal.App.5th at pp. 1058-1059.) Defendant was not entitled to relief under
section 1170.95 because he was not convicted under a theory of felony murder or the
natural and probable consequences doctrine.
Finally, defendant contends that the amended version of section 1170.95 requires
that he receive a hearing to determine whether he has stated a prima facie case for relief,
which he did not receive when the trial court originally considered his petition. Under
these circumstances, however, the trial court’s failure to hold such a hearing was
harmless. “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
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.) As
explained above, the record precludes defendant’s ability to show he was eligible for
relief under section 1170.95. No hearing would change this conclusion and defendant
does not explain why it is reasonably probable he would have obtained a better result had
he received one. Thus, any error was harmless.
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DISPOSITION
The trial court’s order denying defendant’s section 1170.95 petition is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
DUARTE, J.
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