Filed 10/31/22 P. v. Trejo CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B315208
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA020848
v.
JUAN CARLOS TREJO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Jenny M. Brandt and Nancy Gaynor, under appointments
by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1996, a jury convicted appellant Juan Carlos Trejo of
second degree murder and premeditated attempted murder on a
direct aiding and abetting theory. The jury was not instructed on
the natural and probable consequences doctrine or the felony
murder rule. In 2021, Trejo filed a petition for resentencing under
Penal Code1 section 1170.95 (now § 1172.6)2 in which he argued
that the jury convicted him of murder and attempted murder
under an invalid imputed malice theory of liability. The trial
court summarily denied the petition without addressing Trejo’s
attempted murder conviction.
Senate Bill No. 775 (2021–2022 Reg. Sess.) (SB 775), which
took effect after the trial court denied Trejo’s petition, amended
section 1172.6 to permit individuals convicted of murder under a
theory of imputed malice and of attempted murder under the
natural and probable consequences doctrine to petition for
resentencing. On appeal, Trejo contends that SB 775 applies
retroactively and that the case should be remanded for a new
hearing on whether a prima facie case for eligibility exists under
section 1172.6. We agree that SB 775 applies to this appeal but
conclude that the record of conviction conclusively negates the
possibility that Trejo was convicted of second degree murder or
attempted murder under a theory of imputed malice. Remand for
a prima facie hearing on Trejo’s attempted murder conviction
would therefore be futile. Accordingly, we affirm.
1 All undesignated statutory references are to the Penal Code.
2Effective June 30, 2022, section 1170.95 was renumbered section
1172.6, with no change to the text (Stats. 2022, ch. 58, § 10).
2
FACTUAL BACKGROUND
Our summary of the underlying facts is taken from the
unpublished opinion in People v. Rivera and Trejo (Sept. 24,
1998, B108281) [nonpub. opn.] (Trejo I).3
Mainor Rivera and Trejo were members of the Mara
Salvatrucha (M.S.) gang. M.S. and the Langdon Street gang were
rivals. Both operated in the Sepulveda area of the City of Los
Angeles near Langdon and Nordhoff. The gangs, which had a
common “border,” were enemies.
At about 6:30 p.m. on June 25, 1994, Israel Pinedo and
Albert Aceves, members of the rival Langdon Street gang, were
with other members of their gang near the gangs’ common border
on Langdon and Nordhoff. A white car with a black stripe and
tinted windows slowly approached the group of Langdon Street
gang members. Pinedo and his friends yelled “Langdon.” Rivera,
who was a passenger in the car, stuck a gun out of the window
and fired it three times in rapid succession. Pinedo was hit by one
of the bullets, which passed completely through his left side.
Aceves was struck by a bullet, fatally shot in the torso. After the
shots were fired, Pinedo heard Rivera call out “M.S.”
Anita Ruiz and her boyfriend Marcelino Garcia were
driving westbound on Nordhoff, approaching Langdon when they
heard gunshots. Garcia saw a passenger in a car pull a gun back
into that vehicle and a group of males dropping to the ground.
The gunman was holding the gun in his right hand. Garcia and
Ruiz followed the white Toyota carrying the shooter onto the
freeway, pulled up to the car and recorded its license plate
3 Trejo’s petition for resentencing likewise takes its statement of facts
from Trejo I.
3
number. When the car left the freeway, Ruiz got a look at the
driver. She described him as having short hair or a shaved head.
The passenger had “shaved hair” and a build similar to that of
Rivera. Both were Hispanic. Pinedo positively identified Rivera
as the person who had fired the gun. A photograph seized at
Rivera’s residence showed him holding a weapon that could have
fired the bullets that killed Aceves and wounded Pinedo.
The police tracked down and contacted the registered
owner of the car used in the shootings, Mario Lopez. Lopez told
them his wife’s cousin, Trejo, had borrowed the car on the date of
the shootings and had not returned until after 8:00 p.m. Trejo
admitted to the police that he had been driving his cousin’s car on
the evening of the shootings.
PROCEDURAL BACKGROUND
On September 17, 1996, the Los Angeles County District
Attorney filed an amended information charging Trejo and his
codefendant Mainor Rivera with one count of murder (§ 187,
subd. (a)), one count of premeditated attempted murder (§§
664/187, subd. (a)), and one count of assault with a firearm
(§ 245, subd. (a)(2)). The prosecution also alleged an
enhancement against Trejo for the use of a gun during the
commission of the offenses, which attached to each charged
crime.
The jury was not instructed on natural and probable
consequences or felony murder, but on direct aiding and abetting.
The jury was instructed with CALJIC No. 3.00, which states:
“The persons concerned in the [commission] [or] [attempted
commission] of a crime who are regarded by law as principals in
the crime thus [committed] [or] [attempted] and equally guilty
thereof include: [¶] 1. Those who directly and actively [commit]
4
[or] [attempt to commit] the act constituting the crime, or [¶] 2.
Those who aid and abet the [commission] [or] [attempted
commission] of the crime.” The jury was also read CALJIC
No. 3.01, which provides in relevant part: “A person aids and
abets the [commission] [or] [attempted commission] of a crime
when he or she, [¶] (1) with knowledge of the unlawful purpose of
the perpetrator and [¶] (2) with the intent or purpose of
committing, encouraging, or facilitating the commission of the
crime, by act or advice, promotes, encourages or instigates the
commission of the crime.”
The jury found Trejo guilty of second degree murder and
premeditated attempted murder. The jury also found true the
gun enhancement alleged against Trejo. Trejo was sentenced to
16 years to life in state prison. This court affirmed the judgment
in 1998 in Trejo I.
On December 30, 2019, Trejo filed a petition for
resentencing of his murder conviction. On January 22, 2020, the
trial court denied the petition. The court stated that the jury had
not been instructed on murder based on either a felony murder or
a natural and probable consequences theory of liability and that
it was “clear” that the murder conviction was based on aiding and
abetting. The trial court therefore concluded that Trejo had failed
to establish a prima facie case that entitled him to relief and
summarily denied his petition.
Trejo appealed from that denial and this court granted
Trejo’s motion to stay the appeal and for a limited remand to
allow him to seek relief under former section 1170.95 following
changes to the law enacted by Senate Bill No. 1437 (2017–2018
5
Reg. Sess.) (SB 1437).4 In his second petition for resentencing,
filed March 12, 2021, Trejo sought resentencing of both his
murder and attempted murder convictions. He acknowledged
that the jury had not been instructed on natural and probable
consequences as a theory of liability, but contended that he could
have been convicted of murder and attempted murder on an
imputed malice theory.
On September 13, 2021, the trial court summarily denied
the petition. The trial court observed that Trejo was convicted of,
among other crimes, second degree murder and that the jury had
been instructed on direct aiding and abetting and express and
implied malice, not as to the natural and probable consequences
doctrine. Nor was the jury given felony murder instructions. The
court concluded that direct aiding and abetting required the jury
to find that Trejo shared the specific mental state (i.e., malice) as
the actual killer, and that, “[b]ased on the record of conviction,
including the jury instructions given (and instructions not given”,
it was “evident” that a finding of malice or implied malice was the
basis of conviction. The court did not address Trejo’s attempted
murder conviction.5
Trejo timely appealed.
4 We ultimately lifted the stay and considered the brief Trejo’s counsel
originally filed, which asked this court to review the record
independently under People v. Wende (1979) 25 Cal.3d 436. We
concluded that no arguable issues existed and dismissed the appeal.
(People v. Trejo (Dec. 7, 2021, B304686) [nonpub. opn.] (Trejo II).)
5 At the time, former section 1170.95 had not yet been amended to
include attempted murder as a crime for which relief could be sought.
(See People v. Montes (2021) 71 Cal.App.5th 1001, 1006 (Montes).)
6
DISCUSSION
Trejo contends that the court erred in summarily denying
his petition for resentencing because the instructions given to the
jury could have permitted it to convict him of second degree
murder and attempted murder based on a theory of imputed
malice, and that he is therefore entitled to relief following the
changes to section 1172.6 enacted by SB 775. The Attorney
General does not dispute that the current version of section
1172.6 should be applied, but contends that the absence of felony
murder or natural and probable consequences instructions is
determinative and that the trial court’s order should be affirmed
on that basis alone. The Attorney General argues in the
alternative that Trejo’s attempted murder conviction negates the
possibility that implied malice was imputed to him with respect
to his second degree murder conviction.
The trial court’s denial of Trejo’s petition without issuing
an order to show cause is a purely legal conclusion, which we
review de novo. (People v. Murillo (2020) 54 Cal.App.5th 160, 167,
abrogated on other grounds by People v. Strong (2022) 13 Cal.5th
698.) We affirm.
1. Changes to the Law of Murder and Attempted Murder
and Section 1172.6
SB 1437 was enacted 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.) SB 775 modified the law to “expand the
7
authorization to allow a person who was convicted of murder
under any theory under which malice is imputed to a person
based solely on that person’s participation in a crime . . . to apply
to have their sentence vacated and be resentenced,” and to clarify
“that persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural
probable consequences doctrine are permitted the same relief as
those persons convicted of murder under the same theories.”
(Stats. 2021, ch. 551, § 1.)
Pursuant to section 1172.6, an offender must file a petition
in the sentencing court averring that: “(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 other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or
attempted murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of murder,
attempted murder, or manslaughter 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[;] [¶] [and] (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.” (§ 1172.6, subd. (a)(1)–(3); see also id.,
subd. (b)(1)(A).) Additionally, the petition shall state “[w]hether
the petitioner requests the appointment of counsel.” (Id., subd.
(b)(1)(C).)
“Upon receiving a petition in which the information
required by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the court, if
8
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1172.6, subd. (b)(3).) The
prosecutor shall file a response within 60 days of the service of
the petition, and the petitioner may file a reply within 30 days of
the response. (Id., subd. (c).) When briefing has been completed,
“the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief.” (Ibid.) “If the
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.”
(Ibid.)
In determining whether a petitioner has made a prima
facie showing of entitlement to relief, the trial court’s inquiry will
necessarily be informed by the record of conviction, which will
facilitate the court in distinguishing “petitions with potential
merit from those that are clearly meritless.” (People v. Lewis
(2021) 11 Cal.5th 952, 971.) This includes the jury instructions,
which are part of the record of conviction, because the
instructions “given at a petitioner’s trial may provide ‘readily
ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or
entitlement determinations may not amount to ‘factfinding
involving the weighing of evidence or the exercise of discretion,’ ”
which must wait to occur until after an order to show cause
issues. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055,
disapproved on another ground in Lewis.) The court is prohibited
from engaging in “ ‘factfinding involving the weighing of the
evidence or the exercise of discretion.’ ” (Lewis, at p. 972.) Rather,
the court must “ ‘ “take[ ] [the] petitioner’s factual allegations as
true” ’ ” and make a “ ‘ “preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her
9
factual allegations were proved.” ’ ” (Id. at p. 971) Only where the
record of conviction contains facts conclusively refuting the
allegations in the petition may the court make credibility
determinations adverse to the petitioner. (Ibid.)
2. SB 775 applies to this appeal.
SB 775 did not take effect until after the trial court denied
Trejo’s petition for resentencing. (See Montes, supra, 71
Cal.App.5th at p. 1006.) Trejo argues that SB 775 applies
retroactively to cases that were not final when SB 775 took effect.
(See People v. Langi (2022) 73 Cal.App.5th 972, 978, fn. 3 (Langi)
[no dispute that SB 775 applied where the appeal of defendant’s
petition for resentencing was pending when amendments took
effect]; People v. Porter (2022) 73 Cal.App.5th 644, 652 [parties
agreed that SB 775 applied because the order denying the
petition for resentencing was not final when SB 775 took effect].)
The Attorney General argues that it is unnecessary to decide this
question, as Trejo could simply file a new petition if the denial of
his old petition were affirmed under the old law. Thus, for
reasons of judicial economy, the Attorney General contends that
we should apply the current version of section 1172.6.
A criminal judgment is not final until the time for
petitioning for a writ of certiorari in the United States Supreme
Court has passed. (See People v. Porter, supra, 73 Cal.App.5th at
p. 652, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306 and
People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) Because the
order denying the petition for resentencing was not final when
SB 775 took effect, we will apply section 1172.6 as amended by
SB 775 in this appeal. (See Porter, at p. 652; accord, People v.
Basler (2022) 80 Cal.App.5th 46, 56.)
10
3. The absence of felony murder or natural and probable
consequences instructions is not determinative.
The Attorney General asserts that if the record of
conviction indicates that a jury was not instructed on either the
natural and probable consequences doctrine or on the felony
murder doctrine, a petition must be denied without issuance of
an order to show cause, citing People v. Daniel (2020) 57
Cal.App.5th 666, 677. However, Daniel was decided before the
enactment of SB 775 and relied on the language of former section
1170.95, which provided relief only to those convicted of felony
murder or murder under a natural and probable consequences
theory. (Daniel, at p. 677.) Section 1172.6 now provides relief to
those prosecuted for murder under “other theor[ies] under which
malice is imputed to a person based solely on that person’s
participation in a crime,” as well as those prosecuted under the
felony murder doctrine and natural and probable consequences
doctrine. (§ 1172.6, subd. (a)(1).)
Trejo cites Langi, supra, 73 Cal.App.5th 972, for the
proposition that a defendant is entitled to relief under section
1172.6 where instructions provided to the jury permitted it to
convict the defendant under a theory of imputed malice. Langi
was part of a group of four who punched, kicked and robbed the
victim. During the attack, the victim fell, striking his head, which
led to his death. (Langi, at p. 975.) The jury was instructed using
the standard CALJIC instructions on first degree felony murder,
implied malice, and direct aiding and abetting, but not on the
natural and probable consequences theory. (Id. at p. 981.) The
jury acquitted Langi of first degree felony murder but convicted
him of second degree murder, robbery and battery. (Id. at p. 977.)
Langi filed a petition for resentencing, which was summarily
11
denied. (Ibid.) During the pendency of the appeal, SB 775 was
passed.
The Langi court reversed and ordered an evidentiary
hearing on the merits of the section 1172.6 petition. (Langi,
supra, 73 Cal.App.5th at p. 976.) Even without explicit
instruction on the natural and probable consequences theory, the
court found that the record of conviction did not conclusively
exclude the possibility that Langi was convicted under SB 775’s
newly added imputed malice theory. (Langi, at p. 976.) The court
recognized the CALJIC instructions for aiding and abetting an
implied malice murder did not adequately explain the mens rea
required for implied malice murder liability. “Although the
definition of second degree murder in CALJIC No. 8.31 states
that the perpetrator must have acted with conscious disregard for
human life, the definition of an aider and abettor in CALJIC No.
3.01 does not include the same requirement.”6 (Id. at p. 983.)
The court in Langi concluded that this instructional
imprecision allowed the jury to find Langi “guilty of aiding and
abetting second degree murder” by imputing malice based solely
on Langi’s participation in a crime, “without finding that he
personally acted with malice.” (Langi, supra, 73 Cal.App.5th at p.
982.) The court explained that “[t]he aiding-and-abetting
instruction stated that a person aids and abets a crime if he or
6 CALJIC No. 8.31 states that a killing is a second degree murder if: “1.
The killing resulted from an intentional act, [¶] 2. The natural
consequences of the act are dangerous to human life, and [¶] 3. The act
was deliberately performed with knowledge of the danger to, and with
conscious disregard for, human life. [¶] When the killing is the direct
result of such an act, it is not necessary to prove that the defendant
intended that the act would result in the death of a human being.”
12
she acts ‘with knowledge of the unlawful purpose of the
perpetrator, and . . . with the intent or purpose of committing or
encouraging or facilitating the commission of the crime.’
[Citation.] However, . . . the second-degree-murder instruction
specified that the direct perpetrator of that crime need not act
with the unlawful intent of causing death. Thus, while the
perpetrator must have deliberately performed the fatal act ‘with
knowledge of the danger to, and with conscious disregard for,
human life’ [citation], his purpose may have been only to strike or
to injure, or conceivably only to embarrass, the victim. Since the
perpetrator’s purpose need not have been to kill the victim, the
aider and abettor’s knowledge of that purpose similarly need not
have been knowledge that the perpetrator aimed to kill. If the
perpetrator need not have had ‘murderous intent,’ certainly the
aider and abettor need not have had such an intent.” (Id. at
pp. 982–983.)
The court in Langi concluded that such a record of
conviction does not support summarily denying a section 1172.6
petition at the prima facie stage. “Because the record of
conviction does not conclusively negate the possibility that the
jury found appellant guilty of second degree murder by imputing
to him the implied malice of the actual killer, without finding
that he personally acted” with implied malice, that is “ ‘with
knowledge of the danger to, and with conscious disregard for,
human life’ [citation], an evidentiary hearing [was] required.”
(Langi, supra, 73 Cal.App.5th at p. 984.)
In light of Langi, we will consider whether the record of
conviction conclusively negates the possibility that the jury found
Trejo guilty of second degree murder by imputing to him the
malice of his codefendant, rather than affirm on the ground that
13
the jury was not instructed on felony murder or the natural and
probable consequences doctrines.
4. Trejo failed as a matter of law to establish a prima
facie case for resentencing with respect to his second
degree murder conviction.
Relying on Langi, supra, 73 Cal.App.5th 972, Trejo
contends that the record does not conclusively establish that he
personally acted with implied or express malice, as required to
convict him of second degree murder. As in Langi, the jury here
was instructed on the definition of principals and of aiding and
abetting with CALJIC Nos. 3.00 and 3.01, respectively. (Langi, at
p. 981 & fn. 8.) Although the jury in Trejo’s case was instructed
on second degree murder with CALJIC Nos. 8.11 and 8.30, as
opposed to CALJIC No. 8.31 (Langi, at p. 981), Trejo argues that
the result is the same. CALJIC No. 8.11 states the definitions of
express and implied malice and does not require that the jury
find that all defendants harbored malice,7 and CALJIC No. 8.30
requires a finding that the perpetrator harbored malice.8 Trejo
7 CALJIC No. 8.11 states, in relevant part: “ ‘Malice’ may be either
express or implied. [¶] [Malice is express when there is manifested an
intention unlawfully to kill a human being.] [¶] [Malice is implied
when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The
natural consequences of the act are dangerous to human life, and [¶] 3.
The act was deliberately performed with knowledge of the danger to,
and with conscious disregard for, human life.”
8CALJIC No. 8.30 states: “Murder of the second degree is the unlawful
killing of a human being with malice aforethought when there is
manifested an intention unlawfully to kill a human being but the
evidence is insufficient to establish deliberation and premeditation or
drive-by murder.”
14
therefore contends that the jury could have convicted him if his
codefendant harbored malice, so long as jurors believed there was
sufficient proof that Trejo aided and abetted the codefendant’s
act. The Attorney General does not appear to dispute that, as in
Langi, the instructions provided to the jury could have allowed
the jury to convict Trejo of second degree murder without making
an express finding that he personally acted with implied malice.
However, the Attorney General argues that the jury was required
to determine that Trejo personally acted with express malice to
convict him of attempted murder. Because the same conduct
resulted in both the attempted murder and second degree murder
convictions, the Attorney General contends that the jury
necessarily determined that Trejo committed second degree
murder with express rather than implied malice.
People v. Coley (2022) 77 Cal.App.5th 539 (Coley) supports
the Attorney General’s position. The defendant in Coley, like
Trejo, was convicted of second degree murder and attempted
murder and appealed the denial of his petition for resentencing
under section 1172.6. (Coley, at pp. 541–542.) The trial court
concluded that the record of conviction showed the jury had found
express malice, i.e., a specific intent to unlawfully kill, when it
convicted appellant of attempted murder, and therefore denied
the petition. (Id. at p. 545.) The Court of Appeal affirmed,
concluding that the “appellant’s conviction for attempted murder
demonstrates that he was convicted of second-degree murder
with express rather than implied malice” and that “Langi does
not apply because that case involves implied malice.” (Id. at p.
547.) The court explained that “appellant was convicted of
murder based on his aiding and abetting of the same shooting
that gave rise to the attempted murder conviction” and that
15
“[t]he jury was instructed by CALCRIM No. 600 that attempted
murder requires a determination that ‘the defendants intended to
kill that person.’ ” (Ibid.) “[B]y finding appellant guilty of
attempted murder, the jury necessarily found he had personally
harbored intent to kill or express malice when he aided and
abetted the second-degree murder.” (Ibid.)
The statement of facts in Trejo’s petition provides that his
codefendant stuck a gun out of the window of the car and “fired
three times in rapid succession,” injuring Pinedo and killing
Aceves. We are required to take these factual allegations as true.
(Lewis, supra, 11 Cal.5th at p. 971.) Thus, as in Coley, supra, 77
Cal.App.5th 539, the record establishes that Trejo’s second degree
murder and attempted murder convictions arose out of the same
shooting. We agree with the court in Coley that a conviction for
attempted murder demonstrates that a second degree murder
conviction arising out of the same conduct is based on express
rather than implied malice, so long as jury instructions required
a determination that each defendant personally harbored express
malice.
Trejo contends that Coley, supra, 77 Cal.App.5th 539
“hinged entirely on the fact that his jury was instructed with
CALCRIM No. 600,” which required a determination that all
defendants acted with express malice. Here, the attempted
murder instruction, CALJIC No. 8.66, required that the jury find
that a “direct but ineffectual act was done by one person towards
killing another human being” and that “[t]he person committing
the act harbored express malice aforethought, namely, a specific
intent to kill unlawfully another human being.” The
premeditated attempted murder instruction required that the
jury find “that the attempt to commit murder was preceded and
16
accompanied by a clear, deliberate intent to kill, which was the
result of deliberation and premeditation.” Trejo therefore argues
that CALJIC Nos. 8.66 and 8.67, together with CALJIC No. 3.00,
could have led a juror to conclude: (1) Trejo’s codefendant
“harbored express malice aforethought, namely, a specific intent
to kill unlawfully another human being”; (2) the codefendant
premeditated the shooting; and (3) Trejo is “equally guilty” of any
crimes committed by his codefendant.
We disagree. Although CALJIC No. 3.00’s use of “equally
guilty” has the potential to be misleading,9 the jury in this case
was instructed to “[c]onsider the instructions as a whole and each
in light of all the others.” The possibility that the jury may have
imputed express malice to Trejo based on the “equally guilty”
language is foreclosed by CALJIC No. 3.01, which required the
jury to conclude that Trejo acted “with knowledge of the unlawful
purpose of the perpetrator, and . . . with the intent or purpose of
committing, encouraging, or facilitating the commission of the
crime.” (CALJIC No. 3.01, italics added.) Because CALJIC No.
8.66 required a determination that the perpetrator acted with
express malice, or an intent to kill, Trejo’s conviction of
attempted murder as a direct aider and abettor demonstrates
that the jury concluded that Trejo had knowledge of the direct
perpetrator’s intent to kill and that Trejo aided in the commission
9See People v. Nero (2010) 181 Cal.App.4th 504, 516 [the “equally
guilty” language in CALJIC No. 3.00 is inconsistent with “the notion
that an aider and abettor’s mens rea ‘floats free’ ” and thus “can be
misleading”]; accord, People v. Amezcua and Flores (2019) 6 Cal.5th
886, 918 [“former CALJIC No. 3.00 ‘could be misleading if the
principals in a particular case might be guilty of different crimes and
the jury interprets the instruction to preclude such a finding’ ”].
17
of the crime with the purpose of killing. In other words, the jury
necessarily determined that Trejo himself harbored express
malice.10 The circumstances here are therefore distinguishable
from those present in Langi, where the only conviction at issue
was second degree murder, which does not require an intent to
kill by the direct perpetrator and thus does not require that the
aider and abettor knew of or shared any intent to kill. (Langi,
supra, 73 Cal.App.5th at p. 982.)
Our conclusion is also supported by our high court’s
decision in People v. Johnson (2016) 62 Cal.4th 600. Although
Johnson did not concern a petition for resentencing, the
defendant in the case was convicted of first degree murder and
argued that “instructing with former CALCRIM No. 400 violated
his right to due process because the instruction misdescribed the
prosecution’s burden of proving his liability as an aider and
abettor and permitted the jury to convict him of first degree
murder based on the culpability of the perpetrator . . . without
considering his own mental state.” (Id. at p. 638.) Similar to
10 Trejo argues that the Attorney General’s concession that the
premeditation allegation did not require the jury to find that appellant
personally premeditated the crime “establishes that the jury
understood that they could impute a mental state from the actual
killer to appellant, regardless of appellant’s actual intent.” We
disagree. Whether a crime was committed with express malice is a
separate consideration from whether it was premeditated. (See People
v. Smith (2005) 37 Cal.4th 733, 739–740 [attempted murder requires
specific intent to kill, and the prosecution may seek an additional
finding of premeditation “for purposes of sentence enhancement”].)
Section 1172.6 provides relief only where a defendant has been
convicted under a theory of imputed malice, not imputed
premeditation. (§ 1172.6, subd. (a).)
18
CALJIC No. 3.00, former CALCRIM No. 400 stated that “ ‘[a]
person is equally guilty of the crime whether he committed it
personally or aided and abetted the perpetrator who committed
it.’ ” (Johnson, at p. 638, italics added.) The jury in Johnson was
also instructed with CALCRIM No. 401 which, like CALJIC No.
3.01, stated “that for [the jury] to find defendant guilty of murder
as an aider and abettor the prosecution must prove that
defendant knew [his codefendant] intended to kill [the victim],
that he intended to aid and abet [his codefendant] in committing
the killing, and that he did in fact aid him in that killing . . . .’ ”
(Johnson, at p. 641.) The Supreme Court concluded that
CALCRIM No. 401 “would have cleared up any ambiguity
arguably presented by former CALCRIM No. 400’s reference to
principals being ‘equally guilty’ ” and thus “there was no
reasonable likelihood the jurors would have understood the
‘equally guilty’ language . . . to allow them to base defendant’s
liability for first degree murder from the mental state of the
actual shooter, rather than on defendant’s own mental state in
aiding and abetting the killing.” (Johnson, at p. 641.)11
The trial court’s denial of Trejo’s section 1172.6 petition for
resentencing without issuing an order to show cause was
therefore appropriate.
11Trejo contends that the prosecutor misleadingly emphasized CALJIC
No. 3.00 by arguing that the “aider and abettor . . . is just as liable as
the person who actually pulled the trigger.” However, as the Attorney
General points out, this argument was made with respect to the gun
enhancement. With respect to malice, the prosecutor argued that the
evidence demonstrated that Trejo personally acted with an intent to
kill.
19
5. Remand for a prima facie hearing on the attempted
murder conviction would be futile.
Section 1172.6, subdivision (a) provides that persons
“convicted of . . . attempted murder under the natural and
probable consequences doctrine” may petition for resentencing.
Because the statute only references the natural and probable
consequences doctrine, the Attorney General contends that an
individual convicted of attempted murder under other theories of
imputed malice is not entitled to relief under section 1172.6 and
that Trejo’s appeal as to his attempted murder conviction is
therefore meritless. In contrast, Trejo argues that the Legislature
intended SB 775 to remedy “an absurd and unfair situation
where people are eligible for resentencing if the victim died, but
are ineligible if the victim did not die” (Assem. Com. on Public
Safety, Rep. on Sen. Bill No. 775 (2021–2022 Reg. Sess.) July 13,
2021, p. 3) by extending to persons convicted of attempted
murder “the same relief as those persons convicted of murder
under the same theories.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, Unfinished Business Analysis of Sen. Bill No. 775
(2021–2022 Reg. Sess.) Sept. 10, 2021, p. 1.) He asserts that it
would be both illogical and a violation of the Equal Protection
Clause if the Legislature addressed an unfair disparity between
those convicted of murder and attempted murder by introducing
a new disparity permitting only those convicted of murder under
other theories of imputed malice to obtain relief.
We decline to address Trejo’s contentions, as he would not
be entitled to relief under section 1172.6 even if they had any
merit. The jury in this case was not instructed on the natural and
probable consequences doctrine and the record of conviction
negates the possibility that he was convicted of attempted
20
murder based on a theory of imputed malice. Put differently,
because the crime of attempted murder requires a specific intent
to kill and the jury was so instructed, the jury necessarily found
that Trejo himself harbored express malice. (See People v.
Guerra (1985) 40 Cal.3d 377, 386 [the crime of attempted murder
requires a specific intent to kill, a mental state coincident with
express malice].) Although Trejo urges us to remand for a new
prima facie hearing because the trial court did not address
attempted murder in its original order, remand would be futile
here.
21
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
22