Filed 10/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B313853
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA071988)
v.
CYNTHIA M. VARGAS,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Lee W. Tsao, Judge. Affirmed.
David L. Polsky, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel Chang and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Cynthia M. Vargas appeals the denial of her petition for
resentencing under Penal Code1 section 1172.6 (former
§ 1170.95).2
FACTS AND PROCEDURAL BACKGROUND3
On July 12, 2002, James Barbosa (James) walked to Rivera
Park to meet his brother, John Barbosa (John), and Pedro
Brache. None was a member of any gang. The park, however,
was in territory claimed by the Rivera gang, of which Vargas was
an associate or a full member, and her codefendant, Cesar
Alcantar, and 15-year-old Daniel Luna were members. As James
walked over to join John and Brache, Alcantar blocked his path
and repeatedly asked him where he was from. James understood
Alcantar was asking whether he was from another gang, and
James responded he was not from anywhere, meaning he was not
a gang member. But Alcantar accused James of lying and
punched him in the jaw. James turned and walked away to avoid
any further trouble, and Alcantar, Vargas and Luna went to the
back of the park where they spray painted Rivera gang graffiti on
a wall.
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
3 We have granted the parties’ requests to take judicial
notice of the record in the appeal from Vargas’s conviction in case
No. B175349. Included in that record is this court’s prior opinion
in that case, from which much of our factual summary is drawn.
(People v. Alcantar et al. (Apr. 20, 2005, B175349) [nonpub. opn.];
People v. Cruz (2017) 15 Cal.App.5th 1105, 1110 [appellate
opinion is part of the record of conviction].)
2
A few minutes later, Alcantar, Vargas and Luna again
approached James as he was talking with John and Brache.
Alcantar persisted in asking James where he was from and what
he was called. James reiterated that he was not a gang member.
Vargas, who was standing next to Alcantar, threw a tall beer can
at James and said, “Damn,” when it only skimmed the side of his
head. Alcantar struck James again, and a fight ensued.
James, who was larger and stronger than Alcantar, pushed
Alcantar to the ground and got on top of him. James felt two
people hitting and kicking him while he was on top of Alcantar.
John attempted to separate James and Alcantar, and pulled
Vargas and Luna away as they struck and kicked James.
James continued to dominate the fight, and Vargas yelled
to Luna, “Shoot. Shoot the motherfucker.” A few seconds later
Alcantar yelled, “Hurry up. Shoot this motherfucker.” Luna
pulled out a handgun, and John stepped between Luna and
James. As John yelled, “Stop. Stop. No. No,” Luna fired the
weapon twice. One bullet struck John in the back. Luna then
walked up to John and fatally shot him in the back of the head.
The three assailants ran away with James in pursuit.
Vargas and Alcantar got into one vehicle, Luna another, and they
all drove away. An eyewitness testified that if John had not
stepped between Luna and James, Luna would have shot James
in the back while James was on top of Alcantar.
Following a jury trial, Vargas and Alcantar were convicted
of first degree murder (§ 187, subd. (a)) with findings as to each
defendant that a principal used a firearm (§ 12022.53, subds. (d),
(e)(1)) and that the offense was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)). The trial court
sentenced each defendant to 60 years to life, consisting of 25
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years to life for the first degree murder plus consecutive terms of
25 years to life for the firearm enhancement and 10 years to life
for the gang enhancement.
On appeal from the judgment, this court ordered the 10-
year gang enhancement stricken4 but otherwise affirmed
defendants’ convictions. On remand the superior court modified
Vargas’s sentence to a term of 50 years to life.
Following the California Supreme Court’s decision in
People v. Chiu (2014) 59 Cal.4th 155, Vargas filed a petition for
writ of habeas corpus in the superior court on the ground that she
could not be convicted of murder in the first degree under the
natural and probable consequences doctrine. Rather than retry
the case, the People agreed to accept resentencing for second
degree murder. The superior court vacated Vargas’s first degree
murder sentence and imposed a term of 40 years to life,
consisting of 15 years to life for second degree murder plus 25
years to life for the firearm enhancement.
4 The parties agreed that because Vargas and Alcantar
were convicted of first degree murder and sentenced to 25 years
to life in prison, a determinate enhancement under section
186.22, subdivision (b) could not be applied, and because a section
12022.53, subdivision (d) enhancement was imposed pursuant to
section 12022.53, subdivision (e), although neither appellant
personally used or discharged a firearm in the commission of the
murder, no section 186.22, subdivision (b) enhancement could be
imposed.
4
Shortly after Senate Bill No. 1437 became effective, Vargas
filed her petition for resentencing pursuant to section 1172.6.5
The superior court summarily denied the petition without
appointing counsel. We reversed and remanded the matter to the
superior court for further proceedings, including the appointment
of counsel for Vargas and briefing by the parties in accordance
with section 1172.6, subdivision (c). (People v. Vargas (July 13,
2020, B297115) [nonpub. opn.].)
On remand, the trial court issued an order to show cause
and held an evidentiary hearing. The People offered no
argument in opposition to the petition, and neither party
presented new evidence, submitting instead on the record of
conviction. Defense counsel argued that the prosecution’s case
was built entirely on a natural and probable consequences theory
supported by unreliable eyewitness statements identifying
Vargas as one of the participants who called for the shooting.
After reviewing the trial transcripts and hearing argument
by defense counsel, the trial court denied the petition, finding
that “the People have met their burden of proving beyond a
reasonable doubt that Ms. Vargas aided and abetted the first
5 In the same petition, Vargas also asked the court to strike
the related firearm enhancement under section 1385 based on
section 12022.53, subdivision (h) as amended by Senate Bill
No. 620. On remand, however, Vargas did not renew her request,
the superior court did not address it below, and Vargas’s
appellate briefs contain no reference it. We therefore deem the
issue abandoned. (See People v. Ramirez (2006) 39 Cal.4th 398,
450 [failure to press lower court for a ruling deprives that court of
opportunity to correct potential error and forfeits the issue for
appeal]; Taylor v. Nabors Drilling USA, LP (2014) 222
Cal.App.4th 1228, 1247–1248.)
5
degree premeditated murder of John Barbosa.” The court
explained, “While there were some issues of identification with
respect to each witness, altogether, they leave no reasonable
doubt that it was Ms. Vargas who said, ‘Shoot him.’ Those words,
together with Mr. Alcantar’s plea of ‘shoot him,’ led Daniel Luna
to pull out his gun and fatally shoot John Barbosa.”
DISCUSSION
The Trial Court’s Conclusion that Appellant Is Ineligible
for Relief Under Section 1172.6 Is Supported by
Substantial Evidence
A. Applicable legal principles
The Legislature enacted Senate Bill No. 1437 to “amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is 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 objective, Senate Bill No. 1437 amended
section 188, defining malice, and section 189, which classifies
murder into two degrees and lists the predicate felonies for the
crime of first degree felony murder. (Stats. 2018, ch. 1015, §§ 2,
3; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Senate Bill No. 1437 and its amendment to section 188
eliminated potential aider and abettor liability for first or second
degree murder under the natural and probable consequences
doctrine by requiring that a principal “act with malice
aforethought” in order to be convicted of murder; there is no
exception for accomplices. (§ 188, subd. (a)(3); People v. Gentile
(2020) 10 Cal.5th 830, 846 (Gentile).) “By its terms, section 188[,
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subdivision (a)(3)] permits a second degree murder conviction
only if the prosecution can prove the defendant acted with the
accompanying mental state of mind of malice aforethought. The
prosecution cannot ‘impute[] [malice] to a person based solely on
his or her participation in a crime.’ ” (Gentile, at p. 846, quoting
§ 188, subd. (a)(3).)
Section 1172.6 provides a mechanism by which a person
convicted of murder under a natural and probable consequences
theory may be resentenced if they could no longer be convicted of
murder because of the changes to section 188. (People v. Strong
(2022) 13 Cal.5th 698, 708; § 1172.6, subd. (a)(3).) Once a
petitioner establishes a prima facie case for relief and the
superior court issues an order to show cause, the matter proceeds
to an evidentiary hearing at which it is the prosecution’s burden
to prove beyond a reasonable doubt that the petitioner is
ineligible for resentencing. (Strong, at pp. 708–709; § 1172.6,
subd. (d)(3).) If the superior court finds beyond a reasonable
doubt that the petitioner is guilty of murder notwithstanding the
amendments to sections 188 and 189, the petitioner is ineligible
for relief under section 1172.6. (Strong, at pp. 708–709; § 1172.6,
subds. (a)(3) & (d)(3).)
While the superior court acts as an independent fact finder
in determining whether the People have met their burden, on
appeal, the reviewing court applies the substantial evidence
standard to the superior court’s findings. (People v. Garrison
(2021) 73 Cal.App.5th 735, 745, 747 (Garrison).) Under this
familiar standard, “ ‘we review 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—from which a reasonable trier of fact
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could find the defendant guilty beyond a reasonable doubt.’
[Citation.] We determine ‘whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.’ [Citation.] In so doing, a reviewing court
‘presumes in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’ ” (People v.
Edwards (2013) 57 Cal.4th 658, 715; People v. Nieber (2022) 82
Cal.App.5th 458, 476.) Substantial evidence also “ ‘includes
circumstantial evidence and any reasonable inferences drawn
from that evidence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57;
Nieber, at p. 476.)
B. Substantial evidence supports the trial court’s
finding that appellant is guilty of murder under a theory
that remains valid after the amendments to California’s
murder laws.
The trial court denied the petition for resentencing because
it found appellant aided and abetted a first degree premeditated
murder. The court explained that the evidence presented at trial
left no reasonable doubt that appellant’s command to “Shoot.
Shoot the motherfucker,” and Alcantar yelling, “Hurry up. Shoot
this motherfucker,” directly led “Luna to pull out his gun and
fatally shoot John Barbosa.”
Both parties read the court’s ruling to mean that the trial
court held appellant ineligible for relief under section 1172.6
because it found her guilty of first degree premeditated murder.
Appellant does not dispute that Luna’s killing of John constituted
a willful, deliberate and premeditated murder, but argues that
substantial evidence does not support a finding that she had the
requisite intent to kill John. Respondent counters that
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substantial evidence supports the finding that appellant directly
aided and abetted the murder with the intent to kill.
Both parties misconstrue the basis for the trial court’s
ruling: To find appellant ineligible for relief under section
1172.6, the court needed only find appellant acted with implied
malice in directly aiding and abetting the killing. Contrary to the
parties’ arguments, the trial court did not find appellant guilty of
first degree premeditated or express malice murder, but denied
relief because she directly aided and abetted one.
At an evidentiary hearing under section 1172.6, subdivision
(d)(3), the trial judge is charged with determining, beyond a
reasonable doubt, if the petitioner is guilty of murder under a
theory that remains valid after the amendments to the
substantive definition of murder. (Garrison, supra, 73
Cal.App.5th at p. 745; People v. Ramirez (2021) 71 Cal.App.5th
970, 984; People v. Clements (2022) 75 Cal.App.5th 276, 298.)
Although the parties may offer new or additional evidence to
meet their respective burdens, section 1172.6, subdivision (d)(3)
does not contemplate a whole new trial on all the elements of
murder. (Clements, at p. 298.) Rather, “[t]he retroactive relief
provided by [former] section 1170.95 is a legislative ‘act of lenity’
intended to give defendants serving otherwise final sentences the
benefit of ameliorative changes to applicable criminal laws and
does not result in a new trial or increased punishment.” (People
v. Hernandez (2021) 60 Cal.App.5th 94, 111; see People v. Perez
(2018) 4 Cal.5th 1055, 1064 [“a factual finding that results in
resentencing ineligibility does not increase the petitioner’s
sentence; it simply leaves the original sentence intact”].) Thus,
the focus at the evidentiary hearing phase of an 1172.6 petition is
“on evidence made relevant by the amendments to the
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substantive definition of murder,” which, in the context of section
188, requires “the prosecution to prove that all principals to a
murder acted with malice aforethought.” (Clements, at p. 298;
§ 188, subd. (a)(3).)
In conducting our substantial evidence review, we begin
with the presumption that the evidence was sufficient to support
the trial court’s ruling. “Before setting aside the judgment of the
trial court for insufficiency of the evidence, it must clearly appear
that there was no hypothesis whatever upon which there was
substantial evidence to support the verdict.” (People v. Fleming
(2018) 25 Cal.App.5th 783, 789; People v. Bolin (1998) 18 Cal.4th
297, 331.)
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) “Second degree murder is
the unlawful killing of a human being with malice aforethought
but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction
of first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139,
151.) Malice may be express or implied. (§ 188, subd. (a).) It is
express when there is manifested an intent to kill. (§ 188, subd.
(a)(1); People v. Gonzalez (2012) 54 Cal.4th 643, 653.) “Malice is
implied 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.” (Gonzalez, at p. 653.) “The
primary difference between express malice and implied malice is
that the former requires an intent to kill but the latter does not.”
(People v. Soto (2018) 4 Cal.5th 968, 976.)
Before the Legislature amended section 188, the natural
and probable consequences doctrine constituted an exception to
10
the requirement of either express or implied malice for a murder
conviction. (People v. Rivera (2021) 62 Cal.App.5th 217, 231
(Rivera).) Now, since the amendment, the natural and probable
consequences doctrine can no longer support a murder conviction,
but the change did not “alter the law regarding the criminal
liability of direct aiders and abettors of murder . . . . One who
directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable
under the old law.”6 (People v. Offley (2020) 48 Cal.App.5th 588,
595–596; People v. Jenkins (2021) 70 Cal.App.5th 924, 932 [“The
direct aider and abettor of murder, like the direct perpetrator,
must act with malice”].)
“[P]roof of aider and abettor liability requires proof in three
distinct areas: (a) the direct perpetrator’s actus reus—a crime
6 Although implied malice also incorporates the idea of
“natural and probable consequences,” the two concepts are
distinct. Under the natural and probable consequences doctrine,
an aider and abettor’s intent with regard to the nontarget offense
is irrelevant: Liability results entirely from the direct
perpetrator’s acts and intent in committing the nontarget
crime⎯including an unintended murder⎯as long as the
accomplice intended to commit the target offense and the
nontarget offense was reasonably foreseeable. (People v. Smith
(2014) 60 Cal.4th 603, 611 [“ ‘liability “ ‘is measured by whether a
reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted’ ” ’ ”];
Rivera, supra, 62 Cal.App.5th at pp. 231–232.) Implied malice,
on the other hand, is based upon the natural and probable
consequences of a defendant’s own act committed with knowledge
of and disregard for the risk of death the act carries. (People v.
Knoller, supra, 41 Cal.4th at pp. 151–152; Rivera, at p. 231.)
11
committed by the direct perpetrator, (b) the aider and abettor’s
mens rea—knowledge of the direct perpetrator’s unlawful intent
and an intent to assist in achieving those unlawful ends, and
(c) the aider and abettor’s actus reus—conduct by the aider and
abettor that in fact assists the achievement of the crime.” (People
v. Perez (2005) 35 Cal.4th 1219, 1225.)
“In the context of implied malice, the actus reus required of
the perpetrator is the commission of a life-endangering act. For
the direct aider and abettor, the actus reus includes whatever
acts constitute aiding the commission of the life endangering act.
Thus, to be liable for an implied malice murder, the direct aider
and abettor must, by words or conduct, aid the commission of the
life-endangering act, not the result of that act.” (People v. Powell
(2021) 63 Cal.App.5th 689, 713, fn. omitted (Powell).)
As for the requisite intent, our Supreme Court has
explained that “an aider and abettor who does not expressly
intend to aid a killing can still be convicted of second degree
murder if the person knows that his or her conduct endangers the
life of another and acts with conscious disregard for life.”
(Gentile, supra, 10 Cal.5th at p. 850.) The aider and abettor
“need only intend the commission of the perpetrator’s act, the
natural and probable consequences of which are dangerous to
human life, intentionally aid in the commission of that act and do
so with conscious disregard for human life.” (Powell, supra, 63
Cal.App.5th at p. 714.)
Here, substantial evidence supports the trial court’s finding
that appellant acted with implied malice to directly aid and abet
the murder. The evidence presented at trial established that
from the beginning, Vargas was inextricably involved in the
events that led to the murder and she was directly responsible for
12
prompting Luna to shoot and kill John. Alcantar and Luna were
both members of the Rivera criminal street gang, and appellant
was at least an associate of that gang. The murder occurred at a
park in territory claimed by the Rivera gang, and Vargas,
Alcantar and Luna were there together drinking beer and spray
painting gang graffiti on a wall. Vargas stood next to Alcantar as
he challenged James and punched him in the face. When the
three approached James again, it was Vargas who initiated a
physical confrontation by throwing a beer can at James’s head.
Once the fight between Alcantar and James escalated, Vargas
joined in kicking and punching James when he got on top of
Alcantar. Vargas was certainly aware of John’s proximity to and
participation in the fight when he attempted to pull Vargas and
Luna away from James. Moreover, Vargas obviously knew Luna
was armed with a loaded gun when she ordered Luna to “Shoot.
Shoot the motherfucker.” Luna did as he was directed and shot
into the brawl, striking John in the back and incapacitating him.
While John attempted to stand up, Vargas stood by and watched
Luna walk over to shoot John in the back of the head. Only then
did Vargas and her cohort run away.
Even if these circumstances did not establish express
malice on appellant’s part, they certainly constitute sufficient
evidence upon which the trial court could find, beyond a
reasonable doubt, that appellant acted with implied malice in
aiding and abetting the murder. (See People v. Garcia (2008) 168
Cal.App.4th 261, 273 [“Factors to be considered by the trier of
fact in determining ‘whether one is an aider and abettor include
presence at the scene of the crime, failure to take steps to
attempt to prevent the commission of the crime, companionship,
flight, and conduct before and after the crime’ ”].)
13
As set forth above, the essence of aiding and abetting a
murder under an implied malice theory is the accomplice’s act of
aiding, by words or conduct, the commission of a life-endangering
act with knowledge of the danger to life that the act poses.
(Powell, supra, 63 Cal.App.5th at p. 714.) Such an aider and
abettor need not intend to aid a killing to be held criminally
liable for the result of the perpetrator’s act. (Gentile, supra, 10
Cal.5th at p. 850; Powell, at p. 713.) Appellant knew that firing a
gun into a brawl could ultimately result in someone’s death, but
she directed Luna to do it anyway. She did not object when Luna
walked over to John and finished what she had started, nor did
she try to stop him. Substantial evidence supports the trial
court’s finding that appellant is guilty of murder under a still-
valid theory following the Legislature’s amendments to section
188.
14
DISPOSITION
The trial court’s order denying Vargas’s petition for
resentencing under Penal Code section 1172.6 is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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