People v. Delgado CA2/7

Filed 6/14/23 P. v. Delgado CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B319488

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. KA071098-01)

v.

ALONSO DELGADO,

Defendant and
Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, David C. Brougham, Judge. Affirmed.
Richard D. Miggins, 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, Michael C. Keller and Charles S.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.
___________________
Alonso Delgado was convicted following a jury trial in 2005
of second degree murder with true findings on criminal street
gang and principal-use firearm enhancements and sentenced to
an indeterminate state prison term of 40 years to life. In March
2022, following an evidentiary hearing, the superior court denied
Delgado’s petition for resentencing pursuant to Penal Code
section 1172.6 (former section 1170.95),1 finding beyond a
reasonable doubt that Delgado had acted with express malice
when directly aiding and abetting the actual killer of Frankie
Lopez and, therefore, remained guilty of murder under California
law as amended by Senate Bill No. 1437 (Stats. 2018, ch. 1015)
(Senate Bill 1437).
On appeal Delgado contends the superior court improperly
relied on the factual summary in this court’s opinion affirming
his conviction (People v. Delgado (May 31, 2007, B187062)
[nonpub. opn.]), the court’s malice finding was not supported by
substantial evidence and our 2007 affirmance of Delgado’s
conviction under the natural and probable consequences doctrine
estopped the People from relying on a malice theory of murder.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Delgado’s Conviction for Second Degree Murder
Lopez was shot and killed on the evening of December 25,
2004 in the hallway leading to the apartment he shared with his
mother and sister. The evidence at trial established that Lopez’s

1 Statutory references are to this code.

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mother answered a knock on the door of the apartment and a
young man, never identified, said he wanted to speak to Lopez.
Lopez, who had been standing behind his mother when she
opened the door, followed the man from the apartment, telling his
mother he would be right back. From the doorway Lopez’s
mother saw Lopez walking down the hallway toward an alley
with the unidentified man and Delgado.
Lopez’s sister went into the hallway a few moments later
and saw Lopez with Delgado near the porch at the end of the
hallway. David Rodriguez was nearby. Lopez suddenly began
running toward his sister, who heard two gunshots. After the
first shot, which a neighbor described as a loud bang like a
firecracker, the neighbor heard a voice from the hallway say, “Get
him, dog. Get him.” After the second shot was fired, Lopez fell to
the ground. He died from a gunshot wound to the back of his
head.
The People’s theory of the case was that Lopez was shot in
retaliation for an earlier, gang-related shooting of Rodriguez,
who, like Delgado, was a Pomona Sur Trece gang member.
Approximately three weeks prior to the Lopez shooting,
Rodriguez had fought in the parking lot of Lopez’s apartment
building with Anthony Coronado, a member of the rival Azusa 13
gang, because Coronado had disrespected Rodriguez. Coronado
lived off-and-on with Lopez’s family. A week or two after the
fight Rodriguez was shot in the back while he was at a park
across the street from the apartment building. Lopez’s sister
testified she was outside just before Rodriguez got shot and saw
Coronado cover his face with a bandana and run across the street
to the park with a rifle. After Lopez’s sister heard shots fired,
Coronado ran back to Lopez’s apartment, where he left the rifle.

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Rodriguez told detectives that he knew there would be retaliation
for his fight with Coronado.
In a tape-recorded police interview Delgado admitted he
had gone to Lopez’s door on December 25, 2004, but claimed he
had walked back to the car and was opening the car door when
the shooting occurred. He insisted he did not know the other men
intended to shoot Lopez. Delgado told detectives the men, whom
he described as his “homies,” wanted Delgado to come with them
to talk to Lopez because “Frankie had everything to do with all
this that happened. . . . He was the main person they had to kill
for every single thing. . . . The fool that shot [Rodriguez] wasn’t
even a concern.” Delgado explained his fellow gang members’
perspective, “Because if we take [Frankie] out, we don’t got to
worry about this fool coming over here no more doing that, cause
Frankie can’t call them and tell them yea sur trece is right there
in the park. . . . Frankie can’t do that no more. He can’t shoot at
us, and run and hide in Frankie’s house until the police leave
again, he can’t do that no more.” Delgado claimed Rodriguez had
not been present during the incident but would not identify the
individuals who were there. He also claimed his friends had told
him they were not going to kill Lopez, but Delgado acknowledged
he knew they were taking a gun and said to his friends, “You
taking a gun for a reason.”
The jury was instructed on first and second degree murder,
express and implied malice, accomplice liability and murder as
the natural and probable consequence of the target crime of
misdemeanor assault. The jury found Delgado (and Rodriguez)
not guilty of first degree murder, but guilty of second degree
murder (§ 187, subd. (a)). It also found true special allegations a
principal had intentionally discharged a firearm causing death

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(§ 12022.53, subds. (d) & (e)(1)) and the murder had been
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)).
On appeal Delgado contended, in part, it was error to
instruct the jury he could be convicted of murder as the natural
and probable consequence of aiding and abetting a misdemeanor
assault and there was insufficient evidence Lopez’s murder was
the natural and probable consequence of the assault. We rejected
those arguments (as well as Delgado’s contention his confession
was involuntary) and affirmed the conviction. With respect to
Delgado’s instructional error argument, we held, “[a]lthough it
may be correct in some instances a misdemeanor target offense is
too petty to plausibly result in murder as the natural and
probable consequence, it is the appropriate role of the jury to
make this determination in light of all of the circumstances
surrounding the incident. . . . The appropriate distinction is not
between misdemeanors and felonies, but between trivial
activities and non-trivial activities.” As to the sufficiency of the
evidence argument, we reviewed the People’s evidence and
concluded, particularly in light of the escalating violence between
the two rival gangs, it was reasonably foreseeable Lopez’s murder
would result from the planned, armed confrontation with him.
2. Delgado’s Petition for Resentencing
On June 19, 2020 Delgado, representing himself, filed a
petition for resentencing under former section 1170.95. After the
People filed a response, the superior court appointed counsel to
represent Delgado. The People filed a supplemental response;
Delgado’s counsel filed a reply; and the People filed a second
supplemental response. The court ruled Delgado had made a

5
prima facie case for relief and issued an order to show cause
pursuant to section 1172.6, subdivision (c).
At the evidentiary hearing on March 7, 2022, after the
court provided an overview of the procedural history of the case,
the prosecutor asked the court to consider evidence “previously
admitted at trial, including witnesses’ testimony, stipulated
evidence, and matters judicially noticed.” The prosecutor also
introduced “the procedural history of the case that was recited in
the prior appellate opinion that confirmed Mr. Delgado’s
conviction” and “the preliminary hearing testimony provided in
the court record, excluding any hearsay evidence that was
admitted pursuant to section 872(b).” The prosecutor then
confirmed she had no additional new evidence and rested.
Delgado’s counsel introduced a copy of a December 25, 2004
police report from the Pomona Police Department, and the court
later admitted a 22-page PowerPoint document used by Delgado’s
counsel in her argument, which included excerpts of testimony
from the preliminary hearing and trial.
After argument from counsel, the court concluded the
evidence established beyond a reasonable doubt that Delgado was
guilty of second degree murder as an aider and abettor. The
court described the evidence of motive—the animosity of
Rodriguez and Delgado’s gang toward Lopez, who it believed was
responsible for the attack on Rodriguez by a rival gang member—
observing, “It was very clear from Mr. Delgado’s comments to
Detective Kono that the gang was very, very worked up and very,
very animated about Frankie’s role. That doesn’t mean they
weren’t worked up or animated about Coronado’s role also
potentially, but specifically they were going to Frankie’s house
and they held Frankie responsible, whether it be for the fact that

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he let Mr. Coronado, his friend, live there off and on in the past,
whether it was because Mr. Coronado was seen running into his
apartment after shooting Mr. Rodriguez a week and a half before
across the street, or whether it be the belief that some had that
Frankie was acting like a—as a lookout at the park from this
apartment, the gang was very animated.”
The court found that Delgado knew “how extremely
animated the gang is against Frankie. And so for me to believe
that he was just going there to talk to the victim is really
contrary to the whole testimony of the gang expert in trial as to
what gangs are all about.” In addition, the court found that
Delgado “played a critical role at the door in getting the victim
out. He lured the victim out to be executed a few minutes later
by his very, very close friend in the hallway. And to ask me to
believe that after all those conversations, that after what I
believe to be all of that trickery and luring the victim out, that he
was just luring the victim out to talk and not with the intent to
shoot is to defy any reasonable interpretations of the evidence.”
Continuing, the court pointed out that Delgado “was the one in
the gang that was known to the victim. He knew how to act or
what to say to get the victim to step out . . . . He is essentially
escorting the victim with the third unidentified man into the
hands of Mr. Rodriguez. . . . And so, in essence, you know, I find
that he lured the victim out and delivered him into the hands of
the shooter. The conversation quickly went awry and what
Mr. Rodriguez did was not a surprise. It was consistent with the
animated conversation leading up to the incident.” Based on the
evidence before it, the court concluded the People had proved
beyond a reasonable doubt that Delgado “is guilty of second

7
degree murder, unpremeditated intentional killing as an aider
and abettor with the intent to kill.”2
Delgado filed a timely notice of appeal.
DISCUSSION
1. Accomplice Liability for Murder and Section 1172.6
Senate Bill 1437 modified the law relating to accomplice
liability for 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) and
narrowing the felony-murder exception to the malice requirement
for murder. (§§ 188, subd. (a)(3), 189, subd. (e); see People v.
Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021)
11 Cal.5th 952, 957.) It also authorized, through former
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not now
be convicted of murder because of Senate Bill No. 1437’s changes
to the definitions of the crime. (See Strong, at p. 708; Lewis, at
p. 957; Gentile, at p. 843.) As amended by Senate Bill No. 775
(Stats. 2021, ch. 551, § 2) (Senate Bill 775), these ameliorative
changes to the law now expressly apply to attempted murder and
voluntary manslaughter.
If the petition contains all the required information,
including a declaration by the petitioner that he or she is eligible
for relief (§ 1172.6, subd. (b)(1)(A)), the court must appoint

2 The superior court found, in the alternative, the evidence
established beyond a reasonable doubt that Delgado acted with
implied malice when aiding and abetting the murder of Lopez.

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counsel to represent the petitioner, if requested (§ 1172.6,
subd. (b)(3)), and direct the prosecutor to file a response to the
petition, permit the petitioner to file a reply and determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (§ 1172.6, subd. (c); see People v. Lewis, supra,
11 Cal.5th at pp. 962-963.)
When, as here, a petitioner has carried the burden of
making the requisite prima facie showing he or she falls within
the provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing “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.” (§ 1172.6, subd. (d)(3).) The
court may consider evidence “previously admitted at any prior
hearing or trial that is admissible under current law,” including
witness testimony. The petitioner and the prosecutor may also
offer new or additional evidence. (Ibid.)
The superior court’s decision to deny the petition after an
evidentiary hearing, if the proper standard and burden of proof
was applied, is reviewed for substantial evidence. (People v.
Vargas (2022) 84 Cal.App.5th 943, 951; People v. Ramirez (2021)
71 Cal.App.5th 970, 985; People v. Hernandez (2021)
60 Cal.App.5th 94, 113.)

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 2. The Superior Court Did Not Rely on the Statement of
Facts in the Prior Appellate Opinion
As amended by Senate Bill 775, effective January 1, 2022,
the admission of evidence at the hearing following issuance of an
order to show cause pursuant to section 1172.6,
subdivision (d)(3), is “governed by the Evidence Code, except that
the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed.” Amended subdivision (d)(3) further provides, “The court
may also consider the procedural history of the case recited in
any prior appellate opinion.”
Prior to Senate Bill 775’s amendments expressly
authorizing reliance on the procedural history of the case as
stated in a prior appellate opinion, courts of appeal had generally
held an opinion’s summary of the evidence at the petitioner’s trial
was admissible at a hearing to determine whether the petitioner
was entitled to resentencing relief as provided by Senate
Bill 1437. (See, e.g., People v. Williams (2020) 57 Cal.App.5th
652, 661-662; see also People v. Clements (2022) 75 Cal.App.5th
276, 292.) After January 1, 2022 the courts of appeal have
interpreted the amended language in section 1172.6,
subdivision (d)(3), to mean, although the superior court may
consider the procedural history as detailed in an appellate
opinion, it may not (absent stipulation) consider the factual
summary in the same opinion. (See, e.g., People v. Cooper (2022)
77 Cal.App.5th 393, 400, fn. 9 [“Senate Bill 775 prevents a trial
court from relying on facts recited in an appellate opinion to rule
on a petition under section 1170.95, as the statute now provides
that ‘the court may consider evidence previously admitted at any

10
prior hearing or trial that is admissible under current law’ and
‘the procedural history of the case recited in any prior appellate
opinion’”]; People v. Flores (2022) 76 Cal.App.5th 974, 988
[“[f]urthermore, the factual summary in an appellate opinion is
not evidence that may be considered at an evidentiary hearing to
determine a petitioner’s eligibility for resentencing”].)
Emphasizing that Senate Bill 775’s amendments detailing
the evidentiary requirements for a subdivision (d)(3) hearing
were in effect at the time of his hearing in March 2022 (and, in
any event, apply retroactively to appeals from denials of petitions
for resentencing that were not final as of January 1, 2022),
Delgado contends reversal is required because the superior court
improperly relied on the factual summary in our 2007 opinion to
find he had acted with express malice when aiding in the
shooting of Lopez. Delgado’s counsel, however, made no objection
on that ground at the hearing. Even if the issue were not
forfeited,3 moreover, Delgado’s argument lacks merit: There was
no such reliance.

3 Delgado contends there was no forfeiture because, at the
time of his hearing, the only case law discussing the evidentiary
requirements for a subdivision (d)(3) hearing generally permitted
reliance on the factual summary in a prior appellate opinion. But
those cases were interpreting the pre-Senate Bill 775 version of
former section 1170.95, subdivision (d)(3). While forfeiture is not
appropriate when defense counsel failed to anticipate and object
before a change in the law, as the Supreme Court held in People
v. Perez (2020) 9 Cal.5th 1 (no forfeiture when counsel failed to
object to gang expert testimony prior to the decision in People v.
Sanchez (2016) 63 Cal.4th 665), an objection in March 2022,
based on legislation effective January 1, 2022, would not have
been futile if the superior court had, in fact, considered as
evidence the factual summary from our 2007 opinion.

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 As discussed, at the hearing, before both parties had rested,
the court recited the evidence it received and considered at the
request of the prosecutor—the evidence admitted at trial;
preliminary hearing testimony not including hearsay evidence
admitted pursuant to section 872, subdivision (b); and the
procedural history of the case as recited in our 2007 opinion.
Two aspects of that list are noteworthy: It does not include the
factual summary from our 2007 opinion, and it tracks nearly
verbatim the permissible evidence at the subdivision (d)(3)
hearing as defined by the Legislature in Senate Bill 775. There
was no mention at any point during the hearing, either by the
court or the prosecutor, of the factual summary from our decision
affirming Delgado’s conviction.4
But, Delgado argues, the facts recited by the superior court
when questioning counsel and articulating the rationale for its
ruling denying the petition “track to the facts set forth in the
appellate opinion.” Of course they do. The goal of a factual
summary in an appellate opinion is to accurately describe the
evidence at trial to the extent it is material to the issues
presented on appeal. While for some purposes (for example,
substantial evidence review), we examine the evidence in a
manner most favorable to the judgment (that is, to the People),
here there was no dispute as to what Delgado said to the

4 To be sure, as Delgado points out, in responsive
memoranda filed in the superior court in 2021 before Senate
Bill 775’s effective date, the prosecutor had argued reliance on
the factual summary in our opinion was proper. Those earlier
references, however, simply make even more significant the
omission of any similar discussion of our appellate opinion at the
evidentiary hearing in March 2022.

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investigating detective, the testimony of Lopez’s mother and
sister concerning the events leading to and immediately after the
shooting or the neighbor’s description of hearing “get him, dog.”
Our 2007 summary of that evidence and the superior court’s
description of it in 2022 should be the same. Indeed, Delgado
does not even attempt to identify any way in which either
summary was at odds with the evidence at trial. The superior
court’s inferences from that evidence—its conclusion the evidence
proved beyond a reasonable doubt that Delgado acted with
express malice in aiding the murder of Lopez—were that court’s
alone. There was no improper reliance on the prior 2007
appellate opinion.
3. Substantial Evidence Supports the Court’s Finding of
Express Malice
In his statement to law enforcement Delgado claimed he
understood the men who asked him to go with them to Lopez’s
home just wanted to speak to Lopez and insisted he had no
knowledge they intended to kill Lopez. The superior court
disbelieved Delgado, who had conceded he knew the men were
taking a gun and were doing so for a reason. Based on that
admission and other evidence in the record—the escalating ill-
will between the rival gangs; expert testimony regarding the
nature of revenge or retribution following a gang-related shooting
(of Rodriguez by Coronado); Delgado’s and Rodriguez’s close
relationship and Delgado’s demonstrably false denial that
Rodriguez was present during the incident; and, in particular,
evidence that Rodriguez and Delgado’s gang, Pomona Sur Trece,
held Lopez responsible for Coronado’s conduct as confirmed by
Delgado’s admission to Pomona Police Detective Danny Kono
that “we take [Lopez] out, we don’t got to worry about this fool

13
coming over here no more doing that”—the court reasonably
concluded Delgado knew Rodriguez and the unidentified third
man intended to shoot Lopez and acted with express malice when
actively assisting them by luring Lopez down the hallway from
the apartment toward the shooter.5
On appeal, emphasizing it was conceded that he was not
the shooter, Delgado posits an alternative explanation for this
evidence and other snippets from the trial: It was Coronado who
was targeted for retaliation, and the men went to Lopez’s
apartment only to find out where Coronado was. We decline, as
we must, Delgado’s invitation to reweigh the evidence. (See, e.g.,
People v. Ramirez (2022) 13 Cal.5th 997, 1118; People v. Houston
(2012) 54 Cal.4th 1186, 1215.) The evidence before the superior
court amply supported its finding that Delgado remained guilty
of murder under a still-valid, post-Senate Bill 1437 theory of
culpability.
4. The People Were Not Estopped from Proceeding on a
Theory of Malice Murder
Delgado was tried and his jury instructed on alternate
theories of aiding and abetting an express or implied malice
murder and aiding and abetting an assault that resulted, as a
natural and probable consequence, in Lopez’s murder. As
discussed, on appeal we rejected Delgado’s challenges to his
conviction under the natural and probable consequences doctrine,
holding the evidence was sufficient to support a finding that

5 Although it was the unidentified man, not Delgado, who
knocked on the apartment door and initially asked to speak to
Lopez, once Lopez was outside, as Lopez’s sister testified,
Delgado, who was known to Lopez, accompanied him without
resistance down the hallway.

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Lopez’s murder was the natural and probable consequence of a
planned assault on him. Delgado did not raise, and we did not
address, any claim of error (legal or evidentiary) involving malice
theories of murder; and, in upholding Delgado’s conviction under
one theory (which did not require a finding of malice), we made
no ruling that supports Delgado’s contention the prosecution was
estopped from attempting to prove express or implied malice
murder as grounds for denying Delgado’s petition for
resentencing under section 1172.6, subdivision (d)(3), which
authorizes the prosecution to introduce new or additional
evidence to carry its burden of proving the petitioner is guilty of
murder under California law as amended by Senate Bill 1437.
To the extent Delgado’s argument may be construed as
asserting that the prosecution cannot introduce a new theory of
murder liability at the section 1172.6, subdivision (d)(3), hearing,
rather than that our 2007 opinion precluded a malice theory of
murder, the Supreme Court and all courts of appeal that have
addressed this contention have rejected it. (See, e.g., People v.
Gentile, supra, 10 Cal.5th at p. 856 [“the Legislature authorized
the parties to offer new or additional evidence during the [former]
section 1170.95 process in order to allow the parties to explore
issues they did not explore under the prior state of the law”];
People v. Duchine (2021) 60 Cal.App.5th 798, 813 [“[b]y allowing
new evidence and 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”]; see also People v. Schell (2022) 84 Cal.App.5th 437,
444-445 [because a resentencing hearing “‘does not subject a

15
defendant to the risk of additional punishment, is not a trial,
permits both parties to present new evidence, and merely
considers whether the defendant’s request for leniency meets the
necessary criteria, there is no constitutional problem in allowing
new theories of murder liability at that hearing’”].) We have as
well (see People v. Hernandez, supra, 60 Cal.App.5th at p. 111),
and do again now.
DISPOSITION
The postjudgment order denying Delgado’s petition for
resentencing is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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