People v. Wright CA2/8

Filed 9/7/23 P. v. Wright CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

THE PEOPLE, B319807

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA237500)
v.

ERIC LEE WRIGHT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County. Craig J. Mitchell, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, David E. Madeo and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________________
 Appellant Eric Lee Wright appeals from the superior
court’s order denying his petition for resentencing at the prima
facie stage of the proceedings under Penal Code section 1172.61
as to his first degree murder conviction. We affirm because the
record of conviction shows the jury could convict Appellant as a
direct aider and abettor of first degree murder only if it found
Appellant had intent to kill.
BACKGROUND
I. Factual and procedural background
In 2002, Appellant and two other codefendants who were
all members of the Blood Swans Gang drove into an area claimed
by a rival gang. Appellant was driving his car when Appellant’s
passengers exited the vehicle and ran after pedestrian Michael
Mayberry and shot at him. Appellant and his codefendants then
left the scene in Appellant’s car. Mayberry later died from
13 gunshot wounds.
In 2005, the Los Angeles County District Attorney’s Office
charged Appellant with murder (§ 187, subd. (a)), with the
allegations that the murder was gang-related (§ 186.22,
subd. (b)(1)), and that a principal personally and intentionally
discharged a firearm that proximately caused great bodily injury
or death (§ 12022.53, subds. (d) & (e)(1)).
Following a jury trial, the jury was provided with
instructions defining the elements of murder, the difference
between first and second degree murder, as well as the definition
of aiding and abetting. The jury was not provided with

1 All statutory citations are to the Penal Code unless noted
otherwise.

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instructions on the natural and probable consequences or felony
murder theories.
In closing argument, the prosecutor explained the law of
aiding and abetting. “Here is an example, let’s say you agree or
someone agrees to go along for a beer run. . . . A beer run like
kids typically or young adults anyone go into a liquor store and
take a few cans of beer and run let’s say we’re going on a beer run
and I’m going to be the driver and someone else is actually going
to be inside and get [sic] the beer. . . . I agree to be the driver.
And this is the law of aiding and abetting. See, Eric Wright,
ladies and gentlemen, according to the evidence, drove the van
upon seeing Michael . . . Eric Wright, initially made a U-turn.
Eric Wright stopped the van, stood inside the van, while the rest
of the gang went out and killed Michael. . . . but he never shot
Michael Mayberry and the People want to be clear that he was
not the shooter, but yet we charge him with murder. And that’s
the law of aiding and abetting.”
“You may disagree with it, but the law says, in the example
of the beer run, if I just drive someone and that person gets out to
go get us a couple of cans of beer and let’s say . . . the cashier
confronts them . . . and they get in a fight. And let’s say my friend
hits the cashier and the man falls backs, hits [his head] on
something and bleeds to death, possible murder. If I’m caught,
I’m charged with murder also over $2.00 of beer even though
I stayed in the car, never saw, never did anything inside, never
got out. If I’m caught I could be charged with murder and could
be convicted of murder based on that.”
The prosecutor then stated, “your duty is to decide whether
Eric Wright who is on trial here has committed the crimes
charged through aiding and abetting. . . . let me make clear, [it] is

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entirely on the people of the state, whom I represent, to prove to
you each one of the elements of the murder. If we have not
proved the element of murder, it could be a not guilty or it could
be a lesser included crime.”
“We have charged Eric Wright with first degree murder
which we have to show it is murder with malice aforethought
. . . . We have to show that the defendant committed an act or
aided and abetted an act that caused the death of another person,
Michael Mayberry, and when the defendant acted he had a state
of mind called malice aforethought.” The prosecutor then defined
express malice as intention to kill. “The purpose here is very
clear. They were there not to scare someone . . . they were there
to kill.” The prosecutor explained that implied malice is
intentionally committing an act knowing the natural
consequences are dangerous to human life. The prosecutor then
emphasized that this case was a first degree murder case.
The jury convicted Appellant of first degree murder and
found true the gang and firearm allegations. Appellant was
sentenced to 25 years to life. Appellant appealed his conviction
and sentence in case No. B198634. We ordered the trial court to
strike the weapons possession restriction from the abstract of
judgment. We affirmed both the sentence and conviction in all
other respects. (People v. Wright (October 27, 2008, B198634)
[nonpub. opn.].)
On July 17, 2019, Appellant filed a petition for
resentencing under section 1172.6. Appellant was appointed
counsel from the Alternate Public Defender. The trial court
denied the petition because it ruled that Appellant had not made
a prima facie showing that he was eligible for relief given that

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the jury was not instructed on any felony murder or natural and
probable consequences theory.
Appellant timely appealed.
II. Respondent’s request for judicial notice
Respondent requests that we take judicial notice of our own
record in Appellant’s direct appeal in People v. Wright, supra,
B198634. Appellant does not oppose the request. We grant the
request and take judicial notice of case No. B198634 and the
record on appeal because they are records of a court of this state.
(See Evid. Code, § 459; Cal. Rules of Court, rule 8.252(a).)
The record of conviction contained in the record of appeal in case
No. B198634 is relevant in determining whether Appellant has
demonstrated a prima facie case for resentencing relief. (People
v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) Accordingly, we
grant the request for judicial notice.
DISCUSSION
I. Applicable legal background
The California Legislature enacted Senate Bill 1437 (2017–
2018 Reg. Sess.) 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).)” (People v. Martinez (2019) 31
Cal.App.5th 719, 723.) Senate Bill 1437 did this by
amending section 188, which defines malice, and section 189,
which defines the degrees of murder. (Stats. 2018, ch. 1015,
§§ 2, 3.) Amended section 188 states: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,

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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.” (Id., subd. (a)(3).) Amended section
189 states: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven:
[¶] (1) The person was the actual killer. [¶] (2) The person was
not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] [or] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (Id., subd. (e).)
Senate Bill 1437 also established resentencing relief for
eligible defendants. (§ 1172.6, subd. (a), former § 1170.95;
People v. Strong (2022) 13 Cal.5th 698, 707–708 (Strong).) Under
section 1172.6, subdivision (a), “[a] person convicted of felony
murder or murder under the natural and probable consequences
doctrine . . . may file a petition” with the sentencing court to have
his or her murder conviction vacated and to be resentenced on
any remaining counts “when all of the following conditions apply:
[¶] (1) A complaint, information, or indictment was filed against
the petitioner that allowed the prosecution to proceed under a
theory of felony murder, murder under the natural and probable
consequences doctrine . . . . [¶] (2) The petitioner was convicted of
murder, attempted murder . . . following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could have been
convicted of murder or attempted murder. [¶] (3) The petitioner
could not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective

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January 1, 2019” under Senate Bill 1437. (§ 1172.6, subd. (a).)
After receiving a petition containing the required information,
“the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ ” (Strong, at
p. 708 [citing § 1172.6, subd. (c)].) If the defendant makes a
prima facie showing for relief, the court must issue an order to
show cause and hold an evidentiary hearing. (§ 1172.6,
subds. (c), (d)(3).)
In ascertaining whether a defendant has made a prima
facie case for relief, the trial court may look at the record of
conviction, which will necessarily inform its “prima facie inquiry
under section [1172.6], allowing the court to distinguish petitions
with potential merit from those that are clearly meritless.”
(Lewis, supra, 11 Cal.5th at p. 971.) A defendant is ineligible for
relief as a matter of law where the record conclusively shows that
the jury actually relied upon a theory of liability that is
unaffected by section 1172.6, i.e., that a defendant was the actual
killer or directly aided and abetted the killing. (§ 1172.6,
subd. (a)(3); see also People v. Nguyen (2020) 53 Cal.App.5th
1154, 1157, 1167–1168 [petitioner not entitled to relief where he
was convicted as direct aider and abettor].) As part of the record
of conviction, the trial court may consider the prior appellate
opinion, jury instructions, verdict forms, and any special findings
or enhancement allegations the jury found true to determine if
the petition makes a prima facie showing of entitlement to relief.
(Lewis, at p. 957; People v. Soto (2020) 51 Cal.App.5th 1043, 1055
[the trial court may “rely on the jury instructions, which are part
of the record of conviction, in assessing the prima facie
showings”], overruled on another ground by Lewis, at p. 957.)
Courts have also considered counsel’s arguments at the prima

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facie stage. (See, e.g., People v. Cortes (2022) 75 Cal.App.5th 198,
200 (Cortes).)
We review de novo whether the trial court conducted a
proper inquiry under section 1172.6, subdivision (c). (People v.
Harrison (2021) 73 Cal.App.5th 429, 437.)
II. The superior court did not err in denying Appellant’s
resentencing petition
Appellant contends that the superior court erred in denying
his resentencing petition. As discussed further below, Appellant
is ineligible for resentencing relief as a matter of law because the
record of conviction shows that the jury was required to find
Appellant had intent to kill, if it found Appellant guilty for first
degree murder as a direct aider and abettor.
The record shows that the court instructed the jury on the
charged crime of murder under CALCRIM No. 520. The
instruction provided that to convict Appellant of murder, the
People must prove that Appellant “committed an act that caused
the death of another person” and when Appellant acted, he had a
state of mind called malice aforethought. The instructions then
stated that there are two kinds of malice: express malice or
implied malice. Appellant had “express malice if he unlawfully
intended to kill” and implied malice if he “intentionally
committed an act”; “[t]he natural consequences of the act were
dangerous to human life”; “[a]t the time he acted, he knew his act
was dangerous to human life”; and “[h]e deliberately acted with
conscious disregard for human life.”
The trial court also provided the jury with CALCRIM
No. 521 which explained the difference between first and second
degree murders. For first degree murder, the prosecution was
required to prove that Appellant “acted willfully, deliberately,

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and with premeditation.” Appellant “acted willfully if he
intended to kill.” “All other murders are of the second degree.”
The instructions provided that Appellant may be convicted
as either a direct perpetrator or someone who aided and abetted
the perpetrator under CALCRIM Nos. 400 and 401. For
Appellant to be guilty of aiding and abetting, the People must
prove that the perpetrator committed the crime; Appellant knew
the perpetrator intended to commit the crime; before or during
the commission of the crime, Appellant intended to aid and abet
the perpetrator in committing the crime; and Appellant’s word or
conduct did in fact aid and abet the perpetrator’s commission of
the crime. The only crime charged in this case was murder.
Appellant concedes that the jury was not instructed on a
natural and probable consequences or felony-murder theory.
Appellant instead argues that even though the target crime of
murder was specified, the instructions which allowed for guilt
based on implied malice in combination with the prosecutor’s
arguments allowed the jury to impute malice onto Appellant
because he was not the actual killer. Appellant argues that the
prosecutor stated that the only finding the jury had to make to
convict Appellant guilty of murder was to conclude that he was
the driver of the van. Appellant also argues that the prosecutor
conflated the concepts of aiding and abetting a crime with the
natural and probable consequences theory by using an example of
a beer run. “You may disagree [sic] but the law says, in the
example of the beer run, if I just drive someone and that person
gets out to go get us a couple of cans of beer and . . . the cashier
confronts them, [here], you have to pay for the beer and they get
in a fight. And let’s say my friend hits the cashier and the man
falls back, hits [his head] on something and bleeds to death,

9
possible murder. If I’m caught, I’m charged with murder also
over $2.00 of beer even though I stayed in the car.”
However, the prosecutor later emphasized that the jury
must decide whether Appellant committed the crime of first
degree murder through aiding and abetting as instructed.
The prosecutor then stated that it’s the People’s burden “to prove
to you each one of the elements of the murder.” The prosecutor
went on to say that the People charged Appellant with first
degree murder with malice aforethought, and they therefore must
show that Appellant aided and abetted an act that caused the
death of another person and that Appellant acted with malice
aforethought. The prosecutor then defined express malice as
requiring an intention to kill.
As to Appellant’s contention regarding the beer run
example, we presume a jury understands and follows the court’s
instructions, and “ ‘treat[s] the court’s instructions as a statement
of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate.’ ” (People v. Cortez (2016) 63 Cal.4th 101,
131.) Here, the trial court instructed the jury that counsel’s
arguments were not evidence, and that the jury was required to
follow the court’s instructions if counsel’s arguments conflicted in
any way with the jury instructions.
Alleviating any risk of confusion, the prosecutor’s
discussion of the People’s burden to prove malice in conjunction
with the jury instructions demonstrate that the jury could have
convicted Appellant of first degree murder, only if the People had
proven beyond a reasonable doubt that he acted with the intent
to kill, i.e., express malice. (People v. Coley (2022) 77 Cal.App.5th
539, 547 [“[a]n intent to kill is the equivalent of express malice”].)
This finding was required regardless of whether the jury

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ultimately concluded Appellant was the actual killer or a direct
aider and abettor. (See People v. Estrada (2022) 77 Cal.App.5th
941, 943 (Estrada) [a petitioner convicted of first degree murder
as a “classic” aider and abettor is ineligible for resentencing relief
as a matter of law; instructing the jury with CALCRIM Nos. 400
and 401 does not render the petitioner eligible for relief].)
Accordingly, “[t]here is no indication in the record to suggest that
the jury did not, in fact, follow the court’s instructions.” (Cortes,
supra, 75 Cal.App.5th at p. 206.)
Appellant relies on People v. Langi (2022) 73 Cal.App.5th
972 (Langi) and People v. Maldonado (2023) 87 Cal.App.5th 1257
(Maldonado) to contend that based on the aiding and abetting
and implied malice instruction given, the jury was permitted to
find him guilty of murder by imputing malice to him based on the
actions of the actual shooter. Langi and Maldonado are
inapposite because those cases contained jury instructions that
did not require finding that the defendant intended to kill.
(Coley, supra, 77 Cal.App.5th at p. 547; see Langi, at pp. 982–983
[jury instructions on aiding and abetting an implied malice
second degree murder created ambiguity that did not require
finding of intent to kill or conscious disregard of risk];
Maldonado, at p. 1259 [jury instructions on aiding and abetting
an implied malice lying-in-wait murder, which does not require
an intent to kill, allowed the jury to impute malice to the
defendant based solely on his participation in a crime].)
The jury instructions the trial court provided and the
verdicts rendered demonstrate that the jury found the People had
proven beyond a reasonable doubt that Appellant acted with
express malice even if he was not the actual killer. The jury was
instructed that to find Appellant guilty as a direct aider and

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abettor of first degree murder, it was required to find Appellant
knew the perpetrator intended to commit the charged crime, i.e.,
murder, he intended to aid and abet the perpetrator in
committing the murder, and he did by word or conduct aid the
perpetrator in the murder. (See People v. Williams (2022)
86 Cal.App.5th 1244, 1256.) The jury instructions foreclosed the
jury from potentially convicting Appellant of first degree murder
based upon a direct perpetrator’s intent to commit a nonhomicide
offense, and solely upon Appellant’s participation in such an act.
There were no other instructions which would have permitted the
jury to convict Appellant of first degree murder by imputing
malice to him. By finding Appellant guilty of first degree murder,
the jury necessarily determined Appellant acted with the intent
to kill. Accordingly, because Appellant was “convicted of first
degree murder as an aider and abettor with intent to kill,
[Appellant] is . . . ineligible for resentencing” as a matter of law.
(Estrada, supra, 77 Cal.App.5th at p. 945; Lewis, supra,
11 Cal.5th at p. 971.)
DISPOSITION
The trial court’s order denying Appellant’s section 1172.6
petition at the prima facie stage is affirmed.

VIRAMONTES, J.

WE CONCUR:

GRIMES, Acting P. J.

WILEY, J.

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