People v. Gomez CA4/1

Filed 7/22/22 P. v. Gomez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079134

Plaintiff and Respondent,

v. (Super. Ct. No. SCE243463)

RUBEN GOMEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
George L. Schraer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Steve Oetting, Alan L. Amann, and Daniel J. Hilton,
Deputy Attorneys General, for Plaintiff and Respondent.

Ruben Gomez, who is serving a prison sentence for second degree
murder, appeals from the denial of his petition for resentencing pursuant to
Penal Code former section 1170.95 (now renumbered as § 1172.6).1 After
issuing an order to show cause, the trial court found that Gomez was not
entitled to resentencing because the People proved beyond a reasonable doubt
that Gomez is guilty of murder under a theory that remains valid following
the Legislature’s change to the substantive law of murder in Senate Bill No.
1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). Specifically, based on the
transcripts and exhibits from Gomez’s trial, and our appellate opinion in
Gomez’s appeal from his conviction (People v. Gomez (July 13, 2008,
D049431) [nonpub. opn.]), the trial court found beyond a reasonable doubt
that Gomez participated in a conspiracy to commit murder.
Gomez contends: (1) both the statutory language of section 1172.6 and
the Sixth Amendment right to a jury trial should have prevented the trial
court from making its own factual findings that Gomez is guilty of murder
under a currently valid theory, rather than examining whether the jury made
findings that would support guilt under a currently valid theory; (2) based on
due process notice principles, a trial court deciding a petition for resentencing
is not permitted to rely on a theory of murder that was not presented to the
jury; (3) we should apply a de novo standard in reviewing the trial court’s
factual findings; and (4) insufficient evidence supports the trial court’s
finding that Gomez acted with the intent to kill needed for a conviction of
conspiracy to commit murder.

1 Unless otherwise indicated, all further statutory references are to the
Penal Code. Effective June 30, 2022, section 1170.95 was renumbered as
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). In our
discussion we will use the new statutory designation (i.e., § 1172.6) in
referring, in general, to the statute previously designated as section 1170.95
and in referring to the specific statutory language of the current version of
the statute. However, in referring to the specific statutory language in prior
versions of the statute, we will refer to “former section 1170.95.”
2
 We conclude that Gomez’s arguments lack merit, and we accordingly
affirm the order denying Gomez’s petition for resentencing.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Murder of Daniel M.
Around midnight on March 6, 2004, Daniel M. and his friend Yolanda
C. were walking down Millar Street in El Cajon. Daniel M. was a member of
the Varrios Unidos criminal street gang, also referred to as V.U.
Immediately after Daniel M. and Yolanda C. walked past two trucks
parked on the other side of the street, a man standing next to one of the
trucks invoked the name of a rival gang, stating “This is Dukes. This is
Dukes[’s] street.” Daniel M. replied, “That’s cool.” Several other men then
popped up from where they had been crouching near the trucks. When
Daniel M. started running away, a man emerged from behind one of the
trucks, ran across the street, and started shooting at Daniel M. Daniel M.
fell to the ground, facedown. The shooter ran up to Daniel M. and emptied
his gun into Daniel M.’s back, killing him. One of the men then said, “Come
on. Let’s get out of here. . . . We got to go.” The men drove away in the two
trucks.
The police determined that Gomez, who was known to be a member of
the Dukes criminal street gang, had a truck that matched Yolanda C.’s
description of one of the trucks at the scene of the murder. Police went to
Gomez’s house and searched Gomez’s truck, in which they discovered a
loaded firearm.
Gomez was directly tied to Daniel M.’s murder in September 2004
when Dukes gang member William Marquez agreed to cooperate with police
by making secret recordings of conversations with fellow gang members. In a

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recorded conversation involving Gomez, Marco Moedano and Marquez,
Moedano stated that he was the person who shot and killed Daniel M.
Gomez spoke about the circumstances of the murder, explaining that he and
the other Dukes members had been looking for rival gang members to “blast,”
but they had failed to locate any victims, when Daniel M., whom they had
been looking for, unexpectedly walked past them.
“[Gomez]: Nah, we were lookin’ to blast some Locos and Orphans
so we—It was me and Rascal and it was him [i.e., Moedano] and
Boxer. And this fool says, ‘man, let’s call it a night and let’s meet
up in the street . . .’ [LAUGHTER]

“[Gomez]: . . . And we were looking for . . . we were looking for
that fool from V.U. Like man, and we’re like—and the next thing
you know, hey, isn’t that the fool from V.U.? An’ he walking by
us . . .

“[Marquez]: He’s walking with that bitch though, dog [i.e.,
Yolanda C.].

“[Gomez]: She was there. She’s the one that said it was Dukes
and she described the truck. That’s why they went to my pad.

“[Moedano]: Yeah, it was fucked up, dog. But—but it was like
unexpected, homey. Like . . .

“[Gomez]: Yeah, we were not expecting that shit.”

B. Gomez’s Murder Conviction
On February 22, 2005, the People filed a 25-count information against
Gomez and three codefendants. Gomez was charged in the first two counts.
Count 1 charged Gomez, Moedano, and two other codefendants with
murdering Daniel M. (§ 187, subd. (a).) As relevant here, with respect to
Daniel M.’s murder, count 1 alleged that Moedano personally and
intentionally discharged a firearm. As to Gomez specifically, count 1 alleged

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that at least one of the principals personally used a firearm (§ 12022.53,
subds. (d), (e)(1)), and that Gomez committed the murder for the benefit of a
criminal street gang (§ 186.22, subd. (b)(5)). Count 2 charged Gomez, alone,
with carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)), and alleged
that Gomez was an active participant in a criminal street gang (§ 12031,
subd. (a)(2)(C)). Gomez and one of his codefendants (not Moedano) were tried
in a joint trial, before separate juries.
At trial, during the prosecutor’s closing argument, the prosecutor told
the jury that “there’s no controversy that the person who actually pulled the
trigger was Marco Moedano,” but the question was whether Gomez was
vicariously liable for that murder. The prosecutor set forth two possible
theories of vicarious liability for first degree murder, arguing that “the
overwhelming evidence is that [Gomez] is in fact guilty as an aider and
abettor and as a co-conspirator.” Specifically, the jury instructions set forth
the following theories of Gomez’s vicarious liability for murder: (1) the
murder was the natural and probable consequence of Moedano’s commission
of an aggravated assault, which Gomez aided and abetted; and (2) the murder
was the natural and probable consequence of a conspiracy to commit an

aggravated assault, in which Gomez participated.2 The prosecutor

2 With respect to the theory of murder based on aiding and abetting an
assault under the natural and probable consequences doctrine, the jury was
instructed:
“Before you may decide whether the defendant is guilty of
Murder, you must decide whether he is guilty of Assault with a
deadly weapon or by means of force likely to produce great bodily
injury.
“To prove that the defendant is guilty of Murder, the People must
prove that:
“1. The defendant aided and abetted the commission of an

5
specifically argued that the jury should rely on those theories to convict

Gomez of murder.3

Assault with a deadly weapon or by means of force likely to
produce great bodily injury;
“2. During the commission of Assault with a deadly weapon or
by means of force likely to produce great bodily injury, the crime
of Murder was committed;
“AND
“3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
Murder was a natural and probable consequence of the
commission of Assault with a deadly weapon or by means of force
likely to produce great bodily injury.”

With respect to the theory of murder based on a conspiracy to commit
assault, the natural and probable consequence of which was murder, the jury
was instructed:
“To prove that the defendant is guilty of the crime charged in
Count One (Murder of Daniel [M.]), the People must prove that:
“1. The defendant conspired to commit the crime of Assault
with a deadly weapon or by means of force likely to produce great
bodily injury;
“2. A member of the conspiracy committed Murder to further
the conspiracy;
“AND
“3. Murder was a natural and probable consequence of the
common plan or design of the crime that the defendant conspired
to commit.”

3 With respect to the theory of aiding and abetting, the prosecutor
argued: “So, natural and probable consequences, [an] aider and abettor is not
only liable for the crime he or she intended to help, but also any crime, any
crime committed by the perpetrator that a reasonable person would have
known is likely to happen. . . . Any time you have four criminal street gang
members who go out specifically to violently assault rival gang members, a
murder, a killing, a death naturally flows from a violent assault.” With
respect to the theory of conspiracy, the prosecutor argued: “Just like aiders

6
 On May 31, 2006, a jury convicted Gomez of first degree murder (§ 187,
subd. (a)), and of carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)).
The jury found true the gang allegations as to both counts. The trial court
imposed an indeterminate sentence of 25 years to life.
Gomez appealed from the judgment, and on July 13, 2008, we issued an
opinion in which we concluded that the trial court had prejudicially erred in
its response to a question from the jury about the circumstances under which
Gomez could be convicted of first degree murder. (People v. Gomez (July 13,
2008, D049431) [nonpub. opn.].) We reversed Gomez’s conviction for first
degree murder and directed that if the People did not bring Gomez to retrial
on the first degree murder count within the relevant time period, the trial
court should proceed as if the remittitur constituted a modification of the
judgment to reflect a conviction for second degree murder. (Ibid.)
The People decided that they would not retry Gomez. The conviction
was therefore modified to second degree murder, and Gomez was resentenced
to an indeterminate term of 15 years to life.
C. Proceedings on the Petition for Resentencing
On January 30, 2019, Gomez filed a petition for resentencing pursuant
to section 1172.6. The trial court appointed counsel for Gomez, and on
October 21, 2020, it issued an order to show cause based on the conclusion
that Gomez had made a prima facie case of eligibility for relief.

and abettors, we have natural and probable consequence liability for co-
conspirators, too. It’s not only for the intended crime of the conspiracy, it’s
also for any crime committed by any of the conspirators done in furtherance
of the conspiracy that was naturally and probable to flow from the intended
crime. Once again, would a reasonable person have foreseen that when four
gang members get together to violently assault a rival that somebody might
get killed, that the reasonable person could foresee that it would likely
occur?”
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 In connection with the hearing to determine whether Gomez was
entitled to relief on his petition for resentencing, the parties jointly submitted
to the trial court an electronic copy of the reporter’s transcripts from Gomez’s

trial.4 Neither party sought to submit any evidence or testimony beyond
what was already included in the record of conviction.
After hearing argument and considering the relevant portions of the
trial record and our 2008 opinion, the trial court ruled that, although it was
not the theory upon which the jury convicted Gomez, the evidence established
beyond a reasonable doubt that Gomez was guilty of murder under a
currently valid theory because he was a coconspirator to murder. “The
conspiracy consisted of [Gomez] and three other members of his criminal
street gang, the ‘Dukes,’ agreeing to kill members of rival street gangs the
evening of the killing. The members of the conspiracy committed overt acts
by driving around that evening looking for their victims and by one of the co-
conspirators actually killing the victim who was in a rival gang. The overt
acts occurred in San Diego County. Thus, the elements for a conspiracy are
present in this case.”
More specifically, the trial court found,
“[T]he evidence establishes the four gang members agreed at
th[e] beginning of their evening to go around town looking for
rival gang members to ‘blast’ or kill. Thus, the four made an
agreement and thereby conspired to kill their gang rivals. They
committed overt acts, as they tried to locate the other members of
the gangs by driving around town. When they could not find
Locos or Orphans, they decided to go to Millar Street to look for
‘that fool from V.U.’ The fool from V.U. turned out to be the

4 At Gomez’s request, we have taken judicial notice of the appellate
record in Gomez’s appeal from the judgment of conviction. That record
includes the trial transcripts that the parties submitted to the trial court in
connection with the trial court’s evaluation of Gomez’s petition for
resentencing.
8
 victim, Daniel [M.] . . . As soon as the Dukes’ members saw him
come onto the street, they claimed their territory by calling out
their gang name ‘Dukes’ and the victim was immediately shot
and killed.”

The trial court rejected Gomez’s argument that it could consider only
the theories of murder pursued at trial when deciding whether Gomez was
guilty of murder under a currently valid theory. “[Gomez] contends that the
conspiracy theory should be disallowed as a basis for the murder conviction
at this proceeding, as the jury at his trial was not instructed on it. However,
the fact the jury was not presented with the conspiracy theory is not a basis
for disallowing it during this evidentiary hearing. At this hearing, the People
have the ability to present evidence to establish [Gomez] is ineligible for
resentencing. Penal Code section [1172.6] does not limit the People to the
theories presented at the original trial.”
Gomez appeals from the order denying his petition for resentencing.
II.
DISCUSSION
A. Legal Principles Applicable to Petitions for Resentencing Under Section
1172.6
We begin our evaluation of Gomez’s appeal with a review of the legal
principles applicable to petitions for resentencing.
Effective January 1, 2019, Senate Bill 1437 substantially modified the
law relating to murder, eliminating the natural and probable consequences
doctrine as a basis for finding a defendant guilty of murder (People v. Gentile
(2020) 10 Cal.5th 830, 842-843 (Gentile)), and significantly narrowing the
felony-murder exception to the malice requirement for murder (§§ 188, subd.

9
(a)(3), 189, subd. (e); see People v. Lewis (2021) 11 Cal.5th 952, 957).5 As
relevant here, pursuant to section 1172.6, an individual convicted of felony
murder or murder based on the natural and probable consequences doctrine
may bring a petition for resentencing if the person could not be convicted of
murder after the changes to that crime enacted by Senate Bill 1437. (See
Lewis, at p. 957; Gentile, at p. 843.)
When presented with a petition seeking relief under section 1172.6, the
trial court must first determine whether the petitioner has made a prima
facie case for relief. (§ 1172.6, subd. (c).) If the petitioner makes a prima
facie case, the trial court must issue an order to show cause, followed by an
evidentiary hearing to determine whether to recall the sentence and
resentence the petitioner. (Id., subds. (c), (d)(1).)
The People have the burden at the hearing held pursuant to section
1172.6, subdivision (d)(3) to establish that the petitioner is not entitled to
resentencing by proving that the petitioner is guilty of murder under a
currently valid theory. (§ 1172.6, subd. (d)(3).) The parties may present
additional evidence, beyond the record of conviction, for the trial court to

consider in making its ruling.6

5 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.; Stats. 2021,
ch. 551, § 2), effective January 1, 2022, the ameliorative provisions of Senate
Bill 1437 now also apply to attempted murder and voluntary manslaughter.

6 The version of the statute that existed when the trial court decided
Gomez’s petition stated that at the hearing held pursuant to former section
1170.95, subdivision (d)(3), “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to meet their
respective burdens.” (Former § 1170.95, subd. (d)(3).) The statute now
provides, “The admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence previously

10
 After holding a hearing pursuant to section 1172.6, subdivision (d)(3), if
the trial court concludes that the petitioner is entitled to relief, “[t]he
petitioner’s conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes if the petitioner is entitled to
relief pursuant to this section, murder or attempted murder was charged
generically, and the target offense was not charged.” (§ 1172.6, subd. (e).)
As we have explained, Gomez was tried for murder under two theories
of vicarious liability, both of which relied on the natural and probable
consequences doctrine: (1) he entered into a conspiracy to commit an
aggravated assault, the natural and probable consequence of which was
murder; and (2) he aided and abetted an aggravated assault, the natural and
probable consequence of which was murder. Under current law, Gomez could
not have been convicted under either of these theories because they both
relied upon the natural and probable consequences doctrine. Senate Bill
1437 eliminated the natural and probable consequences doctrine as a basis
for murder by amending section 188, which now provides, “Except as stated
in subdivision (e) of Section 189 [governing felony murder], 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); see also Gentile, supra, 10

admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially
noticed. The court may also consider the procedural history of the case
recited in any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of Section 872
shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor
and the petitioner may also offer new or additional evidence to meet their
respective burdens.” (§ 1172.6, subd. (d)(3).)
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Cal.5th at p. 851 [“section 188[, subd.] (a)(3) bars conviction for second degree

murder under a natural and probable consequences theory”].) 7 “[T]he
natural and probable consequences doctrine authorizes precisely what Senate
Bill 1437 forbids: it allows a factfinder to impute malice ‘to a person based
solely on his or her participation in a crime.’ (§ 188[, subd.] (a)(3).)” (Gentile,
at p. 847.)
Therefore, the question before the trial court on Gomez’s petition for
resentencing was whether Gomez was guilty of murder under a theory that
was still valid after Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for a murder conviction.
The trial court found, beyond a reasonable doubt, that Gomez was
guilty of murder under the theory that he participated in a conspiracy to
murder Daniel M. It is beyond dispute that Senate Bill 1437 did not
eliminate conspiracy to commit murder as a valid theory of murder liability
for someone who was not the actual killer. This is because “a conviction of
conspiracy to commit murder requires a finding of intent to kill” (People v.
Swain (1996) 12 Cal.4th 593, 607 (Swain)), satisfying the requirement of
malice aforethought. (See People v. Medrano (2021) 68 Cal.App.5th 177, 186
[petitioner was ineligible as a matter of law for resentencing under section
1172.6 because he was convicted of conspiracy to commit murder].)

7 In 2014, our Supreme Court held that “a defendant cannot be convicted
of first degree premeditated murder under the natural and probable
consequences doctrine.” (People v. Chiu (2014) 59 Cal.4th 155, 167, italics
added.) Senate Bill 1437 effectively extended that prohibition to second
degree murder as well.
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B. Gomez’s Contention That the Trial Court Is Not Authorized to Make Its
Own Factual Finding of Guilt
We first consider Gomez’s contention that the trial court, in deciding a
petition under section 1172.6, is not permitted to make its own factual
finding of guilt, and is, instead, limited to determining whether the jury
made findings that would support a murder conviction under a currently
valid theory. According to Gomez, “for purposes of review of the merits of a
petition under section [1172.6], the trial court should be seen as reviewing a
judgment to determine if the jury made a factual finding necessary for
conviction under the elements currently required for a murder conviction.
The trial court is not acting as an independent trier of fact for purposes of
determining itself whether the evidence at trial established the currently-
required elements of murder beyond a reasonable doubt.” Gomez contends
that the proper inquiry for the trial court is whether “the record shows
beyond a reasonable doubt that the jury at the original trial found the facts
now required for a conviction for murder.” Thus, according to Gomez, in his
case “[w]hat the trial court should have done was determine whether, under
the instructions given, the jury at [his] trial found that [he] acted with an
intent to kill.”
Gomez argues that the approach he advocates is required both by the
statutory language and “a defendant’s Sixth Amendment right to a jury
trial.” As we will explain, neither the statutory language nor the Sixth
Amendment right to a jury trial supports Gomez’s position.
Turning first to the statutory language, at the time of the trial court’s
decision on Gomez’s petition, former section 1170.95, subdivision (d)(3)
stated, “At the hearing to determine whether the petitioner is entitled to
relief, the burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.” (Former

13
§ 1170.95, subd. (d)(3).) Gomez specifically relies on the statement that the
People must prove “that the petitioner is ineligible for resentencing.” (Ibid.)
He argues that this language reasonably could be read to mean that the
People have to “show beyond a reasonable doubt that the use of the old law
did not contribute to the verdict, or to show beyond a reasonable doubt that
the jury decided the facts now required by [Senate Bill] 1437.”
However, effective January 1, 2022, the Legislature passed Senate Bill
No. 775, which added clarifying language to former section 1170.95. (Stats.
2021, ch. 551, § 2.) The statute now provides, “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019. . . . A finding
that there is substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1172.6, subd. (d)(3), italics added.) The Legislature described this
amendment as “[r]eaffirm[ing] that the proper burden of proof at a
resentencing hearing under this section is proof beyond a reasonable doubt.”
(Stats. 2021, ch. 551, § 1, subd. (c).)
After the enactment of Senate Bill No. 775, case law recognizes that the
trial court’s role in a proceeding under section 1172.6 is to act as a finder of
fact and to make a determination, in the first instance, whether the
petitioner is guilty of murder under a currently valid theory. (People v.
Clements (2022) 75 Cal.App.5th 276, 294, 297 (Clements) [describing Senate
Bill No. 775 as having “confirmed” that the trial court makes findings beyond
a reasonable doubt]; People v. Garrison (2021) 73 Cal.App.5th 735, 745

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[describing Senate Bill No. 775 as “abrogating” a prior opinion on the trial
court’s role in deciding a petition for resentencing].) The trial court acts as
“an independent factfinder, to determine beyond a reasonable doubt whether
defendant is guilty of murder under a valid theory of murder.” (Garrison, at
p. 745.) “The question is whether the petitioner committed murder under a
still-valid theory, and that is a factual question.” (Clements, at p. 294.) We
follow this case law and the current statutory language to reject Gomez’s
contention that the statutory language limits the trial court to a
determination of whether the jury made findings that would support a
murder verdict under current law.
Gomez also contends that regardless of the statutory language, the
Sixth Amendment right to a jury trial supports his argument. The due
process clause of the Fourteenth Amendment and the jury-trial guarantee of
the Sixth Amendment, “[t]aken together, . . . indisputably entitle a criminal
defendant to ‘a jury determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.’ ” (Apprendi v.
New Jersey (2000) 530 U.S. 466, 477.) Gomez contends that this
constitutional right to a jury trial prevents a trial court from making a
factual finding of guilt in ruling on a petition under section 1172.6.
Numerous courts have considered and rejected the contention that a
defendant has a Sixth Amendment right to a jury trial in a resentencing
proceeding held under section 1172.6. (See People v. Myles (2021) 69
Cal.App.5th 688, 659, fn. 4; People v. James (2021) 63 Cal.App.5th 604, 607-
611 (James); People v. Howard (2020) 50 Cal.App.5th 727, 740; People v.
Anthony (2019) 32 Cal.App.5th 1102, 1156-1157.) The basis for rejecting the
application of the Sixth Amendment right to a jury trial in the context of a

15
petition for resentencing under section 1172.6 is persuasively discussed in
James, at pages 607 through 611.
As James points out, in the similar context of the resentencing
procedures created by Proposition 36 and Proposition 47, case law holds that
the Sixth Amendment right to a jury trial is not triggered by those
resentencing procedures, as they are acts of lenity by the electorate. (James,
supra, 63 Cal.App.5th at pp. 608-609, citing People v. Perez (2018) 4 Cal.5th
1055, 1063-1064 (Perez) and People v. Rivas-Colon (2015) 241 Cal.App.4th
444, 451-452.) James relies on those holdings to conclude that the same
result applies in a proceeding for resentencing under section 1172.6, because
that proceeding is also based on an act of lenity. (Ibid.)
Gomez contends that the resentencing procedures created by
Proposition 36 and Proposition 47 are not analogous to resentencing under
section 1172.6 because the previous resentencing schemes did not require the
trial court to make a finding of guilt under a newly defined offense. However,
the appellant in James made the same argument, and James rejected it.
(James, supra, 63 Cal.App.5th at p. 609.) James explained, “Section [1172.6]
is ‘an act of lenity’ that requires, under specified circumstances, reduction of
the offense for which he was properly convicted. The constitutional right to a
jury trial does not require a jury determination of those circumstances. ‘[T]he
retroactive relief . . . afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes constituted an act of
lenity that does not implicate defendants’ Sixth Amendment rights.’ . . . No
constitutional provision required the Legislature to authorize relief under the
conditions specified in section [1172.6] and none compels it to make the
conditions subject to jury determination.” (James, at p. 609.) As James
further explained, “the Legislature was not constitutionally required to make

16
the amended definition of murder created by Senate Bill No. 1437 retroactive
as to convictions, like appellant’s, that had become final. . . . [¶] Because the
authorization of retroactive relief in Senate Bill No. 1437 was an act of lenity,
the Legislature was free to condition the availability of such relief on the
convicted person prevailing at an evidentiary hearing conducted pursuant to
the non-jury procedure set forth in section [1172.6].” (James, at pp. 610-611.)
We adopt James’s reasoning to reject Gomez’s contention that the Sixth
Amendment right to a jury trial prohibits the trial court from making a
finding of guilt in a proceeding held under section 1172.6.
In another attempt to establish that the trial court should not be
permitted to make a finding of guilt in ruling on a petition for resentencing
Gomez also argues that we should look to the inquiry that a trial court
applies “when there is a change in the law that requires proof of an element
based on a new factual showing that was not required at the time of trial, and
that change in the law comes about through a judicial decision.” (Italics
added.) Gomez cites several habeas corpus opinions that arose in such a
context. (See, e.g., In re Lucero (2011) 200 Cal.App.4th 38, 50; In re Martinez
(2017) 3 Cal.5th 1216, 1225; In re Rayford (2020) 50 Cal.App.5th 754, 781.)
He urges us to rely on that case law to hold that a trial court considering a
petition under section 1172.6 should apply the same inquiry that a trial court
uses in ruling on a petition for habeas corpus following a judicial decision
that clarifies existing law. In those cases, the trial court does not act as an
independent finder of fact in deciding whether to grant relief. (Lucero, at
p. 50; Martinez, at p. 1225; Rayford, at p. 781.) We reject Gomez’s argument
because the case law he cites is inapposite. Senate Bill 1437 enacted a
change in the statutory provisions governing murder; it was not a
clarification, through judicial decision, of the elements of a crime set forth in

17
an already-existing statute. A trial court ruling on a petition for resentencing
brought under section 1172.6 is not analogous to a trial court ruling on a
petition for habeas corpus.
C. Gomez’s Contention That Based on Due Process Notice Principles the
Trial Court Improperly Relied on a Theory of Murder Not Presented at
Trial
Next, Gomez contends that due process notice principles preclude a
trial court deciding a section 1172.6 petition from applying a theory of
murder that was not presented to the jury. Specifically, Gomez contends that
in his case, “because the People did not try the case on the theory of
conspiracy to commit murder, [his] [Senate Bill] 1437 petition cannot be
denied on this basis.” Gomez argues he “had no notice that the prosecutor
would proceed on a theory of conspiracy to commit murder, or that he would
have to defend against that theory. At trial, he thus had no ‘chance to be
heard’ on this issue.” According to Gomez, “where the prosecution raises a
new theory in a proceeding brought after the judgment became final, but is
based on evidence introduced at trial, the failure to rely on the theory at trial
should be viewed as violating due process principles of notice.”
As an initial matter, we observe that case law, including from our
Supreme Court, describes section 1172.6 as permitting a trial court to rely on
a theory of murder that was not presented at the petitioner’s trial. As our
Supreme Court has stated, “We agree that the Legislature authorized the
parties to offer new or additional evidence during the section [1172.6] process
in order to allow the parties to explore issues they did not explore under the
prior state of the law. The statute contemplates that such evidence may
inform whether a conviction remains valid despite the ameliorative
provisions of Senate Bill 1437.” (Gentile, supra, 10 Cal.5th at p. 856, italics
added.) As another court has observed, “By allowing new evidence and

18
providing for an evidentiary hearing, the Legislature plainly intended that
the issues concerning whether the defendant was guilty under theories of
murder not previously or necessarily decided would be resolved anew, through
a factfinding process affording a degree of due process to the petitioner.”
(People v. Duchine (2021) 60 Cal.App.5th 798, 813, italics added.) Although
these opinions do not expressly address the due process notice issue raised by
Gomez, they are valuable in showing that it is generally understood that a
trial court in a section 1172.6 proceeding may find a petitioner guilty of
murder on a theory not presented at trial.
To support his contention that due process notice principles prevent the
trial court in a section 1172.6 proceeding from relying on theories of murder
not presented to the jury, Gomez relies exclusively on case law arising under
the Sixth Amendment. (Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1236
(Sheppard) [“The Sixth Amendment guarantees a criminal defendant a
fundamental right to be clearly informed of the nature and cause of the
charges in order to permit adequate preparation of a defense”]; Gray v.
Raines (9th Cir. 1981) 662 F.2d 569, 571 [“The issue before this Court is
whether Gray’s conviction . . . violated the sixth amendment to the United
States Constitution, which gives an accused the right ‘to be informed of the
nature and cause of the accusation.’ ”].) In relevant part, the Sixth
Amendment states, “In all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the accusation.” (U.S.
Const., 6th Amend.)
Gomez’s complaint is not that the charging documents in his murder
prosecution failed to allege that he was guilty as a coconspirator to murder.
Indeed, it is well-established that a defendant in a murder proceeding
receives adequate due process notice when murder is pled simply, without

19
any specific degree or theory of murder, including that the defendant was a
coconspirator to murder. (People v. Gallego (1990) 52 Cal.3d 115, 188; People
v. Lucas (1997) 55 Cal.App.4th 721, 737.) Instead, Gomez relies on case law
holding that a defendant’s Sixth Amendment right to be informed of the
nature and cause of the charges in a murder prosecution may nevertheless be
violated when the prosecution affirmatively misleads the defendant about the
theory of murder that it will argue to the jury. (Sheppard, supra, 909 F.2d at
pp. 1235-1237 [Sixth Amendment violation when the prosecution did not
reveal its intention to proceed under a felony-murder theory until after
pretrial proceedings, opening statements, and the taking of testimony]; see
also Gallego, at p. 189 [discussing Sheppard’s recognition of a Sixth
Amendment violation based on “an ‘ambush’ by the prosecution”].) Gomez
contends that he is in a similar position to the defendant in Sheppard
because he was misled at trial into believing that conspiracy to commit
murder was not a theory that he had to defend against, but he is now
required to defend against that theory in the context of this section 1172.6
proceeding.
We reject Gomez’s contention that the Sixth Amendment right to notice
of “the nature and cause of the accusation” is applicable here for the same
reason we have rejected his contention that the Sixth Amendment right to a
jury trial applies: a resentencing proceeding under section 1172.6 is an act of
lenity by the Legislature; it is not a criminal proceeding covered by the Sixth
Amendment. “The Sixth Amendment applies ‘[i]n all criminal prosecutions.’
(U.S. Const., 6th Amend.) A petition under section [1172.6] is not a criminal
prosecution . . . .” (People v. Silva (2021) 72 Cal.App.5th 505, 520 (Silva).)
Thus, “the Sixth Amendment has no application to a section [1172.6]
resentencing proceeding.” (Ibid.)

20
 The court in People v. Howard (2020) 50 Cal.App.5th 727, 740
(Howard), specifically examined and rejected the argument that due process
notice principles arising under the Sixth Amendment apply in a section

1172.6 proceeding.8 Howard held, “The retroactive relief provided by section
[1172.6] reflects an act of lenity by the Legislature ‘that does not implicate
defendants’ Sixth Amendment rights.’ . . . The redesignation does not
increase Howard’s sentence. We reject Howard’s argument that the
residential burglary designation violated his constitutional due process
rights.” (Howard, at p. 740.) Although Howard concerned a redesignation
and resentencing procedure after a petitioner was determined to be entitled
to relief under section 1172.6, we perceive no reason why Howard’s analysis
should not apply here as well. Here, as in Howard, because a section 1172.6
proceeding is not a criminal prosecution that can increase the petitioner’s
sentence, but is rather an act of lenity by the Legislature, the Sixth

Amendment does not apply.9 The theories of guilt presented at trial

8 In Howard, the parties agreed that the petitioner was entitled to be
resentenced to a target offense or underlying felony pursuant to section
1172.6, subdivision (e). (Howard, supra, 50 Cal.App.5th at p. 736.) The issue
was whether due process principles of notice arising under the Sixth
Amendment limited the target offense or underlying felony that the trial
court could select in redesignating the petitioner’s conviction, or whether
there was no limitation, in which case the trial court could redesignate the
conviction as the uncharged crime of first degree residential burglary. (Id. at
pp. 736, 740.)

9 Of course, as one court has observed, “those who seek section [1172.6]
relief do not sacrifice their rights to due process under the Fifth and
Fourteenth Amendments. (U.S. Const., 5th & 14th Amends.; Cal. Const., art.
I, §§ 7, 15.)” (Silva, supra, 72 Cal.App.5th at pp. 520-521.) However, as Silva
explains, those rights entitle the petitioner to meaningful notice within the
context of the section 1172.6 proceeding so that the petitioner may respond to

21
accordingly do not limit the theories of guilt that may be relied upon in a
proceeding under section 1172.6.
Gomez also contends that the People should be judicially estopped from
relying on a theory of murder that was not presented at trial. “ ‘ “ ‘Judicial
estoppel precludes a party from gaining an advantage by taking one position,
and then seeking a second advantage by taking an incompatible position.’ ” ’ ”
(People v. Castillo (2010) 49 Cal.4th 145, 155.) “The doctrine applies when
‘(1) the same party has taken two positions; (2) the positions were taken in
judicial or quasi-judicial administrative proceedings; (3) the party was
successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent;
and (5) the first position was not taken as a result of ignorance, fraud, or
mistake.’ ” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987 (Aguilar).)
Gomez’s judicial estoppel argument lacks merit because at least one of
the prerequisites for the application of the doctrine are not present. For a
party to be judicially estopped, the two positions it has taken must be “totally
inconsistent.” (Aguilar, supra, 32 Cal.4th at p. 986.) Here, no total
inconsistency exists between (1) the theory that Gomez is guilty of conspiracy
to commit an aggravated assault, the natural and probable consequence of
which is murder (as the People asserted at trial); and (2) the theory that
Gomez is guilty of conspiracy to commit murder (as the People assert in this
section 1172.6 proceeding). The positions are not totally inconsistent because
a finding that a person entered into a conspiracy to assault a victim does not

the People’s current theory of the petitioner’s criminal liability. (Id. at
pp. 521-523.) Here, there is no dispute that Gomez received ample notice of
the People’s theory that the trial court could find him guilty as a
coconspirator to murder, as the People thoroughly briefed that theory in their
return to the order to show cause.
22
foreclose a finding that the person also entered into a conspiracy to kill that
same victim during the assault.
D. Gomez’s Challenge to the Standard of Review
We next address Gomez’s argument regarding the standard of review
that we should apply to the trial court’s finding that he is guilty of murder as
a participant in a conspiracy to murder Daniel M.
Case law uniformly holds that in an appeal from an order after the trial
court holds a hearing pursuant to section 1172.6, subdivision (d)(3), the
appellate court reviews the trial court’s findings to determine whether they
are supported by substantial evidence. (See, e.g., People v. Cooper (2022) 77
Cal.App.5th 393, 412; Clements, supra, 75 Cal.App.5th at p. 298; People v.
Ramirez (2021) 71 Cal.App.5th 970, 985; People v. Williams (2020) 57
Cal.App.5th 652, 663; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087.)
Gomez does not dispute that substantial evidence review is proper for
some trial court orders following a hearing held pursuant to section 1172.6.
However, Gomez argues that a de novo standard of review should apply in a
case, such as his, in which the trial court did not hear any live testimony and
relied solely on written documents, including reporter’s transcripts from prior
proceedings, over which it did not preside. According to Gomez, “where, as
here, no one testifies, and the verdict is based entirely on documentary
evidence, the appellate court is in the same position as the trial court to
evaluate the strength of the evidence. The rationale for deferential review is
not present and de novo review is appropriate.” He contends that “[t]here is
no sound reason why this Court should defer to the decision of the trial court
. . . when it comes to evaluating the relevant facts.”
Our colleagues in Division Two recently considered and rejected an
identical argument by relying on our Supreme Court’s opinion in Perez,

23
supra, 4 Cal.5th 1055. (Clements, supra, 75 Cal.App.5th at p. 301.) Perez
concerned the analogous context of a petition for recall of sentence under
Proposition 36. In such a proceeding, certain persons sentenced under the
Three Strikes law are eligible to petition the trial court for resentencing.
(§ 1170.126, subds. (a), (b).) The factual question before the trial court in
Perez was whether the defendant was ineligible for resentencing because he
was armed with a deadly weapon during the commission of the relevant
offense. (Perez, at p. 1062.) The People argued that, on appeal, de novo
review of the trial court’s finding on that issue was “more appropriate
because trial courts do not have an advantage over appellate courts in
determining eligibility based on the record of conviction.” (Id. at p. 1066.)
Our Supreme Court disagreed, concluding that “even if the trial court is
bound by and relies solely on the record of conviction to determine eligibility,
[where] the question . . . remains a question of fact . . . we see no reason to

withhold the deference generally afforded to such factual findings.” (Ibid.)10
Here, similar to Perez, the trial court made a finding regarding Gomez’s
eligibility for resentencing, which was a question of fact. As in Perez, there is
”no reason to withhold the deference generally afforded to such factual
findings” (ibid.), even when the trial court based its findings on a cold record.
Gomez makes no attempt to grapple with Perez or explain why it
should not control here. Instead, he cites a series of cases, all of which we
find to be inapposite.

10 The generally applicable rule is that “an appellate court should defer to
the factual determinations made by the trial court when the evidence is in
conflict,” regardless of whether “the trial court’s ruling is based on oral
testimony or declarations.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479
(Shamblin).) “[T]hat the trial court’s findings were based on declarations and
other written evidence does not lessen the deference due those findings.”
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn. 3 (Haraguchi).)
24
 First, Gomez relies on People v. Vivar (2021) 11 Cal.5th 510, which
concerned the standard of review for a trial court’s ruling on a motion to
vacate a conviction under section 1473.7. Under that statute, a person is
entitled to relief if the trial court finds there was prejudicial error affecting
the person’s ability to meaningfully understand the actual or potential
immigration consequences of a criminal plea. (Vivar, at pp. 527-528.) Vivar
described the question presented as whether “appellate courts must review
deferentially factual findings made by the trial court concerning prejudice
under section 1473.7, even if those findings are based on a cold record
consisting solely of documentary evidence.” (Vivar, at p. 521.) Vivar
concluded that independent review was appropriate, and identified “multiple
factors” for its conclusion. (Id. at p. 527.) As Gomez points out, one of those
factors was that “the judge adjudicating the resulting motion may never have
participated in any of the underlying proceedings and must rely entirely on a
cold record.” (Id. at pp. 526-527.) However, Vivar is otherwise dissimilar to
this case because one of the reasons for Vivar’s holding was the principle that
“[w]hether counsel’s advice regarding immigration was inadequate and
whether such inadequacy prejudiced the defense, while mixed questions, are
predominantly questions of law.” (Id. at p. 524, italics added.) Here, the trial
court made findings of fact; it did not decide “mixed questions” which were
“predominantly questions of law.” (Ibid.)
Next, Gomez relies on case law explaining the standard of review when
a trial court determines whether a defendant’s confession to law enforcement
was voluntary. Specifically, People v. Maury (2003) 30 Cal.4th 342, 404
(Maury) stated that if a confession is contained in a recording, “ ‘the facts
surrounding the giving of the statement are undisputed,’ ” and the appellate
court therefore need not conduct a substantial evidence review of any trial

25
court findings. (Ibid., italics added.) Maury is inapposite because the
evidence at issue in this case is not comparable to a single undisputed tape
recording of a defendant’s confession. Although the relevant evidence was set
forth in trial transcripts and other written documents, the facts of Daniel M.’s
murder and Gomez’s involvement were very much disputed. When the facts
are disputed in a proceeding to determine the voluntariness of a confession,
the appellate court applies the familiar substantial evidence standard of
review to the trial court’s findings. (People v. Williams (2010) 49 Cal.4th 405,
436 [“ ‘ “ ‘the trial court’s findings as to the circumstances surrounding the

confession are upheld if supported by substantial evidence’ ” ’ ”].)11 That
same standard is appropriate here.
Finally, Gomez attempts to draw support from case law describing the
standard of appellate review when a trial court rules on a motion to exclude
prospective jurors for cause in a death penalty trial. Although the trial
court’s determination in that context is entitled to deference when the trial
court personally observes the jurors, when the trial court makes for cause
determinations solely on “the ‘cold record’ of the prospective jurors’ answers
on a written questionnaire, the same information . . . is available on appeal.”

11 In a footnote to his discussion of Maury, supra, 30 Cal.4th 342, Gomez
cites People v. Duff (2014) 58 Cal.4th 527, 551, for the proposition that an
independent standard of appellate review also applies in the Miranda context
(Miranda v. Arizona (1966) 384 U.S. 436) when the facts are undisputed
because the defendant’s statement was recorded. That case, like Maury, is
inapposite because the facts regarding Daniel M.’s murder are disputed. For
the same reason, contrary to Gomez’s contention, this case does not concern
“[t]he legal sufficiency of undisputed evidence” (People v. Villalobos (2006)
145 Cal.App.4th 310, 316, fn. 3, italics added), “[t]he application of a statute
to undisputed facts” (People v. Groat (1993) 19 Cal.App.4th 1228, 1231, italics
added), or “the application of an interpreted statute to undisputed facts”
(Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 168, italics
added).
26
Accordingly, the appellate court reviews the record de novo. (People v. Avila
(2006) 38 Cal.4th 491, 529; see also People v. Stewart (2004) 33 Cal.4th 425,
451 [not giving deference to the trial court’s dismissal of death penalty jurors
for cause when the trial court was “informed by no more information than the
cold record of the five prospective jurors’ check marks and brief handwritten
comments”].) Gomez cites this line of cases because they attach significance
to the fact that both the trial court and the appellate court are reviewing a
“ ‘cold record.’ ” (Avila, at p. 529.) However, we see nothing in those cases
that suggest their approach is applicable beyond the unique situation in
which they arise: a trial court’s reliance on a written questionnaire rather
than on an in-person assessment of a prospective juror in deciding to dismiss
that juror for cause. Nothing in either Avila or Stewart calls into question
the generally applicable rule that in a review of a trial court’s factual
findings, we accord the same deference whether they are based on
documentary evidence or live testimony. (Shamblin, supra, 44 Cal.3d at
p. 479; Haraguchi, supra, 43 Cal.4th at p. 711, fn. 3.)
In sum, after our review of the relevant case law, we conclude that our
Supreme Court’s decision in Perez is closely on point and controls here.
(Perez, supra, 4 Cal.5th at p. 1066.) As here, Perez dealt with a resentencing
procedure created by our Legislature and considered the same question
presented in this appeal, namely, whether a de novo standard of review
applies when the trial court does not consider any live testimony in deciding
whether the petitioner is eligible for resentencing. (Ibid.) Relying on Perez,
we conclude it is appropriate for us to apply a substantial evidence standard
in reviewing the trial court’s finding that Gomez is guilty of murder under
the law as amended by Senate Bill 1437.

27
E. The Trial Court’s Finding Was Supported by Substantial Evidence
Finally, we examine Gomez’s contention that insufficient evidence
supports the trial court’s finding that Gomez is guilty of murder under a
currently valid theory because he was a coconspirator in the murder of Daniel
M.
As we have established above, in an appeal from an order denying a
petition for resentencing after the trial court holds a hearing under section
1172.6, subdivision (d), “[w]e review the trial judge’s fact finding for
substantial evidence. [Citation.] We ‘ “examine the entire record in the light
most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value
that would support a rational trier of fact in finding [the defendant guilty]
beyond a reasonable doubt.” ’ [Citation.] Our job on review is different from
the trial judge’s job in deciding the petition. While the trial judge must
review all the relevant evidence, evaluate and resolve contradictions, and
make determinations as to credibility, all under the reasonable doubt
standard, our job is to determine whether there is any substantial evidence,
contradicted or uncontradicted, to support a rational fact finder’s findings
beyond a reasonable doubt.” (Clements, supra, 75 Cal.App.5th at p. 298.)
“[A] conviction of conspiracy to commit murder requires a finding of
intent to kill, and cannot be based on a theory of implied malice.” (Swain,
supra, 12 Cal.4th at p. 607; see also People v. Cortez (1998) 18 Cal. 4th 1223
[all conspiracy to commit murder convictions are necessarily conspiracy to
commit premeditated and deliberated first degree murder].) The jury
instruction for conspiracy to commit murder sets forth the following
elements: “1. The defendant intended to agree and did agree with [one or
more of] (the other defendant[s]/ [or] ) to intentionally and unlawfully kill; [¶] 2. At the time of
the agreement, the defendant and [one or more of] the other alleged
member[s] of the conspiracy intended that one or more of them would
intentionally and unlawfully kill; [¶] 3. (The/One of the) defendant[s][,]
[or ][,] [or (both/all) of
them] committed [at least one of] the following overt act[s] alleged to
accomplish the killing: ; [¶] AND [¶] 4. [At
least one of these/This] overt act[s] was committed in California.” (CALCRIM
No. 563.) The instruction also emphasizes that “[c]onspiracy to commit
murder requires an intent to kill,” and “[t]he People must prove that the
members of the alleged conspiracy had an agreement and intent to commit
murder.” (Ibid.)
Focusing on the requirement that a defendant must possess an intent
to kill to be convicted of conspiracy to commit murder, Gomez contends that
insufficient evidence supports a finding he had an intent to kill Daniel M.
Gomez acknowledges that he was recorded stating: “Nah, we were
lookin’ to blast some Locos and Orphans so we—It was me and Rascal and it
was him [i.e., Moedano] and Boxer. And this fool says, ‘man, let’s call it a
night and let’s meet up in the street . . .’ [LAUGHTER] [¶] . . . And we were
looking for . . . we were looking for that fool from V.U. Like man, and we’re
like—and the next thing you know, hey, isn’t that the fool from V.U.? An’ he
walking by us . . .” Indeed, in finding that Gomez was guilty of being a
coconspirator to murder, the trial court relied on Gomez’s statement that he
and his companions were “lookin’ to blast” certain rival gang members,
including Daniel M. (i.e., “that fool from V.U.”), which is what ended up
happening.

29
 However, according to Gomez, there is no reasonable basis for
understanding the statement that they were “lookin’ to blast” rival gang
members as meaning that they had agreed to commit a killing. Instead,
Gomez argues, the statement establishes nothing more than that they had
agreed to shoot at certain rival gang members. Gomez contends the
statement that he and his companions were looking to “blast” rival gang
members “is, at most, consistent with conduct that might constitute implied
malice—the doing of an act that endangers the life of another coupled with a
conscious disregard for life,” but it does not establish an intent to kill.
Gomez couples his argument about the meaning of the term “blast”
with a focus on other facts that he contends make it unlikely that he acted
with an intent to kill Daniel M. Specifically, as Gomez points out, the
evidence at trial showed that (1) Gomez may have been stepping away from
his involvement with the Dukes gang at the time of the murder, as he was
enrolled in college and had a job; and (2) there is no evidence that Gomez or

any of his companions were previously involved in a killing.12

12 Gomez also argues that in assessing the sufficiency of the evidence we
should place weight on the fact that, at trial, the prosecutor purportedly “did
not view the evidence as supporting a conspiracy to commit murder because
the prosecutor did not rely on or argue that theory to the jury and instead
argued murder was a natural and probable consequence of a conspiracy to
commit a felonious assault.” We reject the argument. The fact that, prior to
Senate Bill 1437, the prosecutor in a murder case elected to rely on the
natural and probable consequences doctrine rather than attempting to prove
a conspiracy to commit murder does not indicate that the prosecutor believed
the People would be unable to prove a conspiracy to commit murder. Instead,
that choice shows nothing more than that, as a matter of trial tactics, it is
reasonable to pursue the theory of murder that is easier to establish. There
was no reason for the prosecutor to confuse the jury with a range of
alternative theories for murder when a natural and probable consequences
theory, which was valid at the time, would suffice.
30
 We understand Gomez’s argument, but we reject it because it is more
appropriately made to a finder of fact than to an appellate court conducting a
review for substantial evidence. It is undisputed that, at a minimum, the
word “blast” means to shoot. In certain contexts it might be unreasonable to
understand the word “blast” to mean to shoot at someone with the intent to
kill that person. However, in the context of this case, a reasonable finder of
fact could conclude that when Gomez stated that he and his companions were
“lookin’ to blast” rival gang members, he meant that they were looking to
shoot and kill them.
The strongest evidence supporting that interpretation is what actually
ended up happening. When Gomez’s group located Daniel M., one of them
(Moedano) ran out and shot Daniel M. multiple times at close range in the
back until the gun was empty, with the clear intent to kill him, not just to
shoot at him. Further, when Gomez was recorded months later talking about
the killing to his fellow gang members, he did not say anything about being
surprised that Moedano shot Daniel M. in a manner that was plainly
intended to kill him.
Gomez points out that both he and Moedano stated in the recording

that some aspect of the incident was “unexpected.”13 Based on that
statement, Gomez contends the recording shows it was “unexpected” that
Moedano would kill Daniel M. Gomez’s argument is not persuasive. Based
on the entire context of the recorded conversation, the most reasonable
interpretation is that both men described the encounter with Daniel M. as
“unexpected” because they had already given up on trying to find Daniel M.

13 Moedano stated, “it was like unexpected.” Gomez stated, “That shit
was unexpected,” and “Yeah, we were not expecting that shit.”
31
when he ended up crossing their path.14 The recording contains no
indication that Gomez was in any way surprised that Moedano took action to
shoot and kill Daniel M. after Daniel M. unexpectedly walked past them.
In sum, we conclude that substantial evidence supports the trial court’s
finding, beyond a reasonable doubt, that Gomez acted as a coconspirator in
Daniel M.’s murder, including that he acted with the intent to kill Daniel M.
DISPOSITION
The order denying the petition for resentencing is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.

14 We note that during Gomez’s trial, Marquez testified as to his
understanding of what Gomez and Moedano meant when they stated that
some aspect of Daniel M.’s killing was unexpected. The trial court was not
required to credit that interpretation of the statements, as Marquez was
testifying about the meaning of someone else’s words describing an event in
which he did not participate.
32