People v. Medrano

Filing 1/22/24 (opinion on rehearing)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B324567
(Super. Ct. No. CR28216)
Plaintiff and Respondent, (Ventura County)

v. OPINION ON REHEARING

VINCENT MEDRANO,

Defendant and Appellant.

Vincent Medrano again appeals an order denying his Penal
Code section 1172.6 petition for resentencing. 1 The order was
made at the prima facie stage of the proceedings. This is his
second petition for resentencing.
In 1991 appellant was convicted of two counts of first
degree murder with a multiple-death special-circumstances
finding (§§ 187, 189, 190.2, subd. (a)(3)), two counts of attempted
first degree murder (§§ 664/187, 189), and one count of conspiracy
to commit first degree murder (§ 182). The jury found true
allegations that a principal in the commission of the offenses had
been armed with a firearm. (§ 12022, subd. (a)(1).) Appellant

1 All statutory references are to the Penal Code.
was sentenced to prison for 50 years to life plus one year for a
firearm enhancement. In 1994 we affirmed the judgment in an
unpublished opinion, People v. Medrano (Jul. 26, 1994, B065832).
In 2019 appellant filed his first section 1172.6 petition.
After issuing an order to show cause, the trial court conducted an
evidentiary hearing pursuant to section 1172.6, subdivision (d).
The trial court denied the petition, and we affirmed in People v.
Medrano (2021) 68 Cal.App.5th 177, hereafter referred to as
“Medrano” or “our 2021 opinion.” We held “that section [1172.6]
relief is unavailable to a petitioner [such as appellant]
concurrently convicted of first degree murder and conspiracy to
commit first degree murder where both convictions involve the
same victim” because the “[c]onviction of conspiracy to commit
first degree murder shows, as a matter of law, that the ‘target
offense’ is murder . . . .” (Id. at p. 179.)
In the present appeal we conclude that the above holding is
the law of the case and conclusively establishes at the prima facie
stage that appellant is not entitled to resentencing based on his
second 1172.6 petition. Accordingly, we again affirm.
Our conclusion may be at variance with the holding of
People v. Harden (2022) 81 Cal.App.5th 45, 50 (Harden): “[P]rior
to [an evidentiary] hearing under section [1172.6], subdivision
(d)(3), the law-of-the-case doctrine cannot conclusively establish
disentitlement [to relief under section 1172.6].” We explain below
why the holding of Harden is inapplicable here. We also explain
why our conclusion is consistent with People v. Curiel (2023) 15
Cal.5th 433 (Curiel).)
Facts
The following facts are taken from Medrano, supra, 68
Cal.App.5th at p. 179: Appellant and Carlos Vargas purchased a

2
.22 caliber semi-automatic rifle. Appellant “scored” the “tip” of
the rifle’s bullets in the belief that “the scoring would make the
bullets more explosive.” As overt act No. 7 underlying the
conspiracy charge, the jury found that appellant, Vargas, Edward
Throop, and Joseph Scholle had “discussed among themselves
committing a drive-by shooting.” 2 Vargas drove them to Cabrillo
Village in Ventura County. “Throop held the rifle and sat in the
back seat next to appellant.” Throop pointed the rifle out the
window and fired multiple shots at a group of people attending a
baptism party. As Vargas drove away, Scholle shouted the
names of rival gangs. Two men attending the baptism party died
of gunshot wounds. Two other men were shot but survived.
Senate Bill No. 1437 Eliminated the Natural and Probable
Consequences Doctrine as a Basis for Murder Liability
Senate Bill No. 1437 (S.B. 1437) became effective on
January 1, 2019. (Stats. 2018, ch. 1015.) It “imposed a new
requirement that, except in cases of felony murder, ‘a principal in
a crime shall act with malice aforethought’ to be convicted of
murder. (§ 188, subd. (a)(3).) ‘Malice shall not be imputed to a
person based solely on his or her participation in a crime.’
[Citation.] One effect of this requirement was to eliminate
liability for murder as an aider and abettor under

2 “A conviction of conspiracy requires proof . . . of the

commission of an overt act ‘by one or more of the parties to such
agreement’ in furtherance of the conspiracy.” (People v. Morante
(1999) 20 Cal.4th 403, 416.) The jury found that appellant and
his co-conspirators had jointly committed seven overt acts,
including that they had (1) purchased the rifle used in the
murders, (2) “scored the bullets,” (3) “armed themselves with
[the] rifle,” and (4) “hid the rifle used in the murders.”

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the natural and probable consequences doctrine. [Citation.]
‘[U]nder the natural and probable consequences doctrine, an
accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the
“natural and probable consequence” of the crime the accomplice
aided and abetted (i.e., the nontarget offense). [Citation.] A
nontarget offense is the natural and probable consequence of a
target offense “if, judged objectively, the [nontarget] offense was
reasonably foreseeable.” [Citation.] . . .’ . . . Thus, under prior
law, a defendant who aided and abetted an intended assault
could be liable for murder, if the murder was the natural and
probable consequence of the intended assault. [Citation.] The
defendant need not have intended the murder or even
subjectively appreciated the natural and probable consequences
of the intended crime. [Citation.] [S.B.] 1437 ended this form of
liability for murder.” (Curiel, supra, 15 Cal.5th at p. 449.)
Section 1172.6 and Its Legislative History
Section 1172.6 was added to the Penal Code by S.B. 1437.
(Stats. 2018, ch. 1015, § 4.) Section 1172.6, subdivision (a)
originally provided, “A person convicted of felony murder or
murder under a natural and probable consequences theory may
file a petition with the court that sentenced the petitioner to have
the petitioner’s murder conviction vacated and to be resentenced
on any remaining counts when” certain conditions apply.
Effective January 1, 2022, section 1172.6 was amended by
Senate Bill No. 775 (S.B. 775). (Stats. 2021, ch. 551, § 2.) S.B.
775 added the following ground for relief to section 1172.6,
subdivision (a): the petitioner’s murder conviction was pursuant
to a “theory under which malice is imputed to a person based

4
solely on that person’s participation in a crime.” S.B. 775 also
amended section 1172.6, subdivision (a) to expand eligibility for
resentencing to persons convicted of “attempted murder under
the natural and probable consequences doctrine.” One of the
conditions for relief under amended section 1172.6 is that “[t]he
petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Id., subd. (a)(3).)
After a section 1172.6 petition is filed, “the court shall hold
a hearing to determine whether the petitioner has made a prima
facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall
issue an order to show cause.” (§ 1172.6, subd. (c).) “At the
prima facie stage, a court must accept as true a petitioner's
allegation that he or she could not currently be convicted of a
homicide offense because of changes to section 188 or 189 made
effective January 1, 2019, unless the allegation is refuted by the
record. [Citation.] And this allegation is not refuted by the
record unless the record conclusively establishes every element of
the offense. If only one element of the offense is established by
the record, the petitioner could still be correct that he or she
could not currently be convicted of the relevant offense based on
the absence of other elements.” (Curiel, supra, 15 Cal.5th at p.
463.)
If an order to show cause is issued, the court shall conduct
an evidentiary hearing to determine the petitioner’s eligibility for
relief. (§ 1172.6, subd. (d)(1).) At the evidentiary hearing the
burden is on the People “to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder . . . .”
(Id., subd. (d)(3).)

5
 Our 2021 Medrano Opinion
In our 2021 opinion we noted that “[t]he jury [at appellant’s
trial] was instructed on the natural and probable consequences
doctrine.” (Medrano, supra, 68 Cal.App.5th at p. 182.) Despite
this instruction, we concluded: “The prosecutor met his burden
[at the evidentiary hearing] of proving, ‘beyond a reasonable
doubt, that [appellant] is ineligible for resentencing.’ (§ [1172.6],
subd. (d)(3).) Appellant’s conviction of conspiracy to commit first
degree murder rendered him ineligible as a matter of law. The
conviction established that he had not been ‘convicted of . . . [first
degree] murder under a natural and probable consequences
theory.’ (§ [1172.6], subd. (a).) He was convicted of first degree
murder under a direct aiding and abetting theory, i.e., he knew
and shared the murderous intent of the actual perpetrator,
Throop.” (Id., at p. 186.)
The Second Section 1172.6 Petition
Appellant filed a second section 1172.6 petition (the
petition at issue in this appeal) after the effective date of the
amendment of that section by S.B. 775. In the trial court he
asserted, “This petition is based on S.B. 775, which amended
section 1172.6, subdivision (a) to include [as grounds for relief], in
addition to felony-murder or murder under the [natural and
probable consequences] doctrine, any ‘other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime.’” Appellant argued that he had made a
prima facie showing that he was convicted of murder pursuant to
a theory under which malice had been imputed to him based
solely on his participation in the drive-by shootings. In addition,
he argued that he had made a prima facie showing that he was
convicted of both murder and attempted murder under the

6
natural and probable consequences doctrine. Relying on Harden,
supra, 81 Cal.App.5th 45, appellant contended the law of the case
doctrine was inapplicable at the prima facie stage of a section
1172.6 proceeding.
The People’s Opposition and the Trial Court’s Ruling
In opposition to appellant’s second section 1172.6 petition,
the People argued that our holding in Medrano, supra, 68
Cal.App.5th 177, is the law of the case. In denying the second
petition, the trial court explained, “[B]ased on the reasoning o[f]
the appellate opinion, specifically with regards to the conviction
for conspiracy, I will find that the petition is barred, as a matter
of law.”
The Law of the Case Doctrine
“‘“The doctrine of the law of the case is this: That where,
upon an appeal, the [reviewing] court, in deciding the appeal,
states in its opinion a principle or rule of law necessary to the
decision, that principle or rule becomes the law of the case and
must be adhered to throughout its subsequent progress, both in
the lower court and upon subsequent appeal, and . . . in any
subsequent suit for the same cause of action . . . .”’ The principle
applies to criminal as well as civil matters [citations] . . . .”
(People v. Stanley (1995) 10 Cal.4th 764, 786.) “We will apply the
law of the case doctrine where the point of law involved . . . was
‘“actually presented and determined by the court.”’” (People v.
Gray (2005) 37 Cal.4th 168, 197.) But “the doctrine will not be
adhered to where its application will result in an unjust decision,
e.g., where there has been a ‘manifest misapplication of existing
principles resulting in substantial injustice’ [citation], or the
controlling rules of law have been altered or clarified by a
decision or [statutory amendment] intervening between the first

7
and second appellate determinations [citation].’” (Stanley, supra,
at p. 787.)
Applicability of the Law of the Case Doctrine at
the Prima Facie Stage of a Section 1172.6 Proceeding
Appellant claims the law of the case doctrine is inapplicable
at the prima facie stage of a section 1172.6 proceeding. He relies
on Harden, supra, 81 Cal.App.5th 45. There, the Court of Appeal
held: “At the prima facie stage of an [1172.6] proceeding, it is of
course impossible to know what the evidence will ultimately be at
an evidentiary hearing that has not yet occurred. We thus agree
with Harden that prior to a hearing under section [1172.6],
subdivision (d)(3), the law-of-the-case doctrine cannot
conclusively establish disentitlement [to relief under section
1172.6].” (Id. at p. 50.)
In an earlier appeal from Harden’s judgment of conviction,
the Court of Appeal had “determined [that at Harden’s 2001 trial]
there was insufficient evidence to sustain a finding that Harden’s
role was anything other than that of [the] actual killer.”
(Harden, supra, 81 Cal.App.5th at p. 50.) The Court of Appeal
concluded that this determination was not the law of the case. It
credited Harden’s argument, which was as follows: “[The] law of
the case [doctrine] cannot be invoked where there is a
‘“substantial difference in the evidence”’ on retrial of the
particular issue. [Citation.] . . . [I]f at [an evidentiary] hearing
under subdivision (d) of section [1172.6], the evidence material to
[Harden’s] role in the murder were substantially the same [as the
evidence in Harden’s 2001 trial], then law-of-the-case principles
would compel the same legal conclusion to be drawn, i.e., that she
was the actual killer. But if the evidence were materially
different on that issue, . . . [the] law of the case [doctrine] would

8
not apply. This is because law of the case ‘controls the outcome
on retrial only to the extent the evidence is substantially the
same.’ [Citation.] Where ‘“there is a substantial difference in the
evidence to which the [announced] principle of law is applied, . . .
the [doctrine] may not be invoked.”’” (Id., at p. 50; see People v.
Boyer (2006) 38 Cal.4th 412, 442 [“the law-of-the-case doctrine
governs only the principles of law laid down by an appellate
court, as applicable to a retrial of fact, and it controls the outcome
on retrial only to the extent the evidence is substantially the
same. [Citation.] The doctrine does not limit the new evidence a
party may introduce on retrial”].)
Appellant asserts, “Harden precludes the court from
invoking the law of the case doctrine at the prima facie stage
because it is unclear what the evidence will be at an evidentiary
hearing that has yet to occur. [Appellant] may present evidence
at the evidentiary hearing that contradicts [this court’s]
conclusion [in our 2021 opinion] that [he] harbored an intent to
kill.”
The holding in Harden should be limited to prohibiting
application of the law of the case doctrine at a prima facie
hearing where, as in Harden, the appellate court’s prior
determination concerned the sufficiency of the evidence at the
petitioner’s trial. At an evidentiary hearing conducted pursuant
to section 1172.6, subdivision (d), Harden would have had the
opportunity to introduce new evidence showing that she was not
the actual killer. Therefore, the sufficiency of the evidence
determination in the earlier appeal from Harden’s judgment of
conviction could not be the law of the case at the prima facie
stage of his section 1172.6 petition.

9
 Unlike Harden, supra, 81 Cal.App.5th 45, in Medrano,
supra, 68 Cal.App.5th 177, we were not concerned with an
appellate court’s prior determination of the sufficiency of the
evidence at appellant’s trial. Instead, we were concerned with
the effect of the jury’s finding that appellant was guilty of both
first degree murder and conspiracy to commit first degree
murder. We enunciated the following principle of law: “[S]ection
[1172.6] relief is unavailable to a petitioner concurrently
convicted of first degree murder and conspiracy to commit first
degree murder where both convictions involve the same victim”
because the “[c]onviction of conspiracy to commit first degree
murder shows, as a matter of law, that the ‘target offense’ is
murder . . . .” (Id. at p. 179.) This principle of law necessarily
applies where, as here, the petitioner has also been concurrently
convicted of attempted first degree murder and conspiracy to
commit first degree murder and both convictions involve the
same victim.
At a section 1172.6, subdivision (d) evidentiary hearing,
appellant could not introduce new evidence that would affect the
validity of the principle of law enunciated in our 2021 Medrano
opinion. This is the key distinction between Medrano and
Harden. Unlike appellant, the petitioner in Harden theoretically
could have introduced new evidence to controvert the appellate
court’s prior determination that, based on the evidence
introduced at trial, she must have been the actual killer. Thus,
in contrast to Harden, the principle of law enunciated in our 2021
opinion is the law of the case.
This principle of law was not altered by S.B. 775’s
amendment of section 1172.6, subdivision (a) to expand eligibility
to persons convicted of murder pursuant to a “theory under which

10
malice is imputed to a person based solely on that person’s
participation in a crime.” (Ibid., italics added.) A person cannot
be convicted of conspiracy to commit first degree murder based on
such “imputed” malice. (People v. Cortez (1998) 18 Cal.4th 1223,
1226 [“[T]he crime of conspiracy to commit murder requires a
finding of unlawful intent to kill, i.e., express malice”].)
We noted in Medrano, supra, 68 Cal.App.5th at p. 184:
“According to an instruction given before the jury started its
deliberations (CALJIC No. 6.10), it could convict appellant of
conspiracy to commit first degree murder only if it found he had
acted ‘with the specific intent to agree to commit the public
offense of first degree murder and with the further specific intent
to commit such offense.’ In view of this instruction, the
conspiracy conviction shows that the jury found appellant had
specifically intended to commit first degree murder.” Appellant
cannot relitigate this issue. “[A] section [1172.6] petition is not a
means by which a [petitioner] can relitigate issues already
decided.” (People v. Coley (2022) 77 Cal.App.5th 539, 549.)
Each charge and conviction for a separate count stands or
falls on its own. (People v. Pahl (1991) 226 Cal.App.3d 1651,
1657.) Thus, even if there were some instructional error as to the
murder and attempted murder counts, it could not be used to
impeach the jury’s finding of intent to kill as to the conspiracy
count. This finding is as true today as it was in 1991 when the
jury returned its guilty verdicts.
Appellant’s Claim that Our 2021 Medrano
Opinion Conflicts with Our 1994 Opinion
Appellant argues, “[T]he law of the case doctrine should not
apply at all in this case [because we] rendered two irreconcilable
opinions on the issue of whether the jury found that [he had]

11
harbored the specific intent to kill.” The two opinions – our 2021
opinion and our 1994 opinion in appellant’s direct appeal from
the judgment of conviction – are not in conflict. In our 2021
opinion we rejected appellant’s similar contention. We noted that
in the 1994 opinion “[w]e did not consider whether, by convicting
appellant of conspiracy to commit first degree murder, the jury
necessarily found that he had harbored the specific intent to kill.”
(Medrano, supra, 68 Cal.App.5th at p. 186.)
Application of the Law of the Case Doctrine
Will Not Result in an Unjust Decision
Appellant has not shown that, by applying the law of the
case doctrine, we would be shutting our eyes to a manifest
misapplication of existing principles resulting in substantial
injustice. As our Supreme Court observed: “‘[A]ll conspiracy to
commit murder is necessarily conspiracy to commit premeditated
and deliberated first degree murder.’” (People v. Beck & Cruz
(2019) 8 Cal.5th 548, 641-642.) “[A] conviction of conspiracy to
commit murder requires a finding of intent to kill . . . .” (People v.
Swain (1996) 12 Cal.4th 593, 607.)
The California Supreme Court’s Recent
Decision in Curiel Is Distinguishable
At our request, the parties filed supplemental letter briefs
discussing the applicability of Curiel, supra, 15 Cal.5th 433, to
the issue of whether appellant made a prima facie case for relief.
In his supplemental brief appellant asserts, “[T]he law of the case
doctrine should not bar [him] from making a prima facie case for
relief based on Curiel.” We disagree. Curiel is distinguishable.
In 2006 a jury convicted Curiel of first degree murder and
found true a gang-murder special-circumstance allegation
(§ 190.2, subd. (a)(22)) that required a specific intent to kill the

12
victim. Curiel petitioned for resentencing under section 1172.6.
“He alleged . . . that he had been convicted of first degree murder
under the natural and probable consequences doctrine and could
not currently be convicted of murder because of changes to the
murder statutes enacted by [S.B.] 1437.” (Curiel, supra, 15
Cal.5th at p. 440.) “[T]he trial court denied Curiel’s petition for
failure to state a prima facie case. The court believed the jury’s
finding that Curiel ‘inten[ded] to kill,’ which was required for the
gang-murder special circumstance, refuted Curiel’s allegation
that he could not be convicted of murder under current law and
therefore precluded relief under [S.B.] 1437.” (Ibid.)
The Supreme Court affirmed the Court of Appeal’s
judgment reversing the trial court’s decision. The Supreme Court
stated: “We hold only that under the jury instructions here, the
findings the jury must have made are insufficient to conclusively
establish that Curiel is liable for murder under current law. The
jury could have relied on the natural and probable consequences
doctrine to convict Curiel of murder, and the findings required
under that theory—even when combined with the finding of
intent to kill required by the gang-murder special circumstance—
do not encompass all of the elements of any theory of murder
under current law. These findings were therefore insufficient to
rebut Curiel's allegation that he could not be convicted of murder
under current law, and the trial court erred by denying Curiel's
petition for resentencing at the prima facie stage.” (Curiel,
supra, 15 Cal.5th at p. 471.)
The Supreme Court explained: “Although intent to kill is
certainly blameworthy, it is insufficient standing alone to render
a person culpable for another’s acts. The aider and abettor must
know the direct perpetrator intends to commit the murder or life-

13
endangering act and intend to aid the direct perpetrator in its
commission.” (Curiel, supra, 15 Cal.5th at p. 468.) “Under the
court’s instructions, the jury was not required to make these
findings. Because the jury was instructed on the natural and
probable consequences doctrine, the jury was required to find
only that Curiel knew that [the actual killer] intended to commit
one of the underlying target offenses [disturbing the peace or
carrying a concealed firearm by a gang member] and that Curiel
intended to aid him in that offense, not murder.[ 3] . . . While the
jury separately found Curiel intended to kill, such an intent
standing alone is insufficient to establish the requisite mens rea
for aiding and abetting murder. The essence of aiding and
abetting is involvement in the crime of another. The aider and
abettor must become ‘concerned’ with the crime itself. (§ 31.) ‘[A]
person “chooses to become a part of the criminal activity of
another”’ and ‘“says in essence, ‘your acts are my acts.’”’” (Ibid.)

3 The jury was instructed: “ ‘To prove that the defendant is

guilty of murder under the theory of aiding and abetting [based
on] natural and probable consequences, the People must prove
beyond a reasonable doubt that [1] the defendant is guilty of
disturbing the peace or of carrying a concealed firearm by a gang
member; [2] during the commission of the crime of disturbing the
peace or of the crime of carrying a concealed firearm by a gang
member the crime of murder was committed; and [3] under all
the circumstances a reasonable person in the defendant’s position
would have known that the commission of murder was a natural
and probable consequence of the commission of the crime of
disturbing the peace or of the crime of carrying a concealed
firearm by a gang member.’” (Curiel, supra, 15 Cal.5th at p. 446.)

14
 Unlike Curiel, appellant was convicted of conspiracy to
commit first degree murder. Thus, the target offense was not an
underlying offense other than murder, such as assault with a
firearm. The target offense was murder. Appellant and his
accomplices formed a conspiracy to commit murder during a
drive-by shooting. “The mental state elements of conspiracy
require the prosecution to demonstrate the defendant had the
specific intent both to agree to the conspiracy and to commit the
object offense.” (People v. Ware (2022) 14 Cal.5th 151, 164.) As
we stated in Medrano, supra, 68 Cal.App.5th at p. 184, “First
degree murder was the object of the conspiracy, not the natural
and probable consequence of an act committed to further the
object of the conspiracy.” (See People v. Jurado (2006) 38 Cal.4th
72, 123 [“For a conspiracy to commit murder, intent to commit
the target offense means an intent to kill”].)
Accordingly, the jury must have found that appellant knew
his co-conspirator, Throop, intended to commit murder and that
appellant intended to aid Throop in committing murder. The
jury was instructed, “‘A conspiracy is an agreement entered into
between two or more persons with the specific intent to agree to
commit the public offense of first degree murder and with the
further specific intent to commit such offense . . . .’” (Medrano,
supra, 68 Cal.App.5th at p. 185, fn. 4.)
Because the facts, jury instructions, and verdicts in the
present case are different from those in Curiel, the Supreme
Court’s holding in Curiel is of no assistance to appellant. (See
Curiel, supra, 15 Cal.5th at p. 471 [“our holding today does not
necessarily apply to other cases where the jury found intent to
kill . . . . The jury instructions in other cases might be materially

15
different, and they might therefore have required different
factual findings by the jury”].)
Disposition
The order denying appellant’s second section 1172.6
petition for resentencing is affirmed.
CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.

16
 Michele M. Castillo, Judge

Superior Court County of Ventura

______________________________

Claudia Y. Bautista, Public Defender, William Quest, Snr.
Deputy Public Defender, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.