People v. Aragon CA2/8

Filed 1/24/24 P. v. Aragon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B324564

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA054712-01)
v.

JASON FRANK ARAGON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Joseph A. Brandolino, Judge. Affirmed.

Gary V. Crooks, 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, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
 Jason Aragon appeals the denial of his petition for
resentencing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Procedural History
In 2008, Aragon was convicted of attempted murder (Pen.
Code,1 §§ 664, 187, subd. (a)) and assault with a firearm (§ 245,
subd. (a)(2)). With respect to both counts, the jury found true the
allegation that a principal was armed with a firearm (§ 12022,
subd. (a)(1)) and not true the allegation that Aragon personally
inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7,
subd. c)). With respect to the attempted murder conviction, the
jury found not true the allegation that the attempted murder was
convicted willfully, deliberately, and with premeditation (§§ 664,
subd. (a), 1192.7, subd. (c)). Aragon was sentenced to 24 years in
state prison.
In 2022, Aragon filed a petition for resentencing pursuant
to former section 1170.95, now recodified as section 1172.6 (Stats.
2022, ch. 58, § 10). After appointing counsel for Aragon and
receiving the parties’ briefing, the court concluded the petition
did not establish a prima facie showing that Aragon was eligible
for resentencing because there was no indication he was
convicted under an implied malice theory of attempted murder.
Aragon appeals.

1 Undesignated statutory references are to the Penal Code.

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II. Evidence Presented at Trial
In November of 2006, Aragon met and began dating
Veronica Villasenor. Villasenor told Aragon about Avante
Adkins, a prior boyfriend who had been violent with her and had
kept her van. In January 2007, Aragon got a job at a
telemarketing company based on his connections with a friend
named Julio Pereira. Unbeknownst to Aragon, Adkins was the
man who hired him.
When Aragon told Villasenor about the interview and his
new employer, she recognized he was talking about Adkins and
told him not to take the job. She explained that Aragon’s new
boss, whom Aragon was scheduled to meet later so Aragon could
sell him marijuana, was actually her former boyfriend. Aragon
became excited and “pumped up,” and said he would try to get
her van back by befriending Adkins.
That night, Aragon told Villasenor he was going to “hang
out” with his cousin George, but he actually went to the office.
Outside the office, Pereira attempted to complete Adkins’s drug
transaction with Aragon, but Aragon said he wanted to see and
speak with Adkins. Adkins went outside with Aragon. After
several minutes, Pereira heard someone running outside, and
Adkins stumbled into the office saying he had been shot. Adkins
said Pereira’s friend had shot him.
That night, Aragon initially told Villasenor he and Adkins
had been fighting when Aragon heard gunshots. Aragon said he
and George left and went to Villasenor’s home. Aragon said he
did not know who was shooting or what happened but someone
fired a gun and he left. Later, Aragon told Villasenor he and
George went to the office, where he (Aragon) asked Adkins if he
knew Veronica. Adkins said, “No. Veronica who?” This angered

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Aragon, and the men started to fight. Aragon said he shot
Adkins because Adkins choked him.
After Aragon was arrested, he informed Villasenor that
George would come to her home to retrieve the gun. Villasenor
saw George go into her back yard, but she did not see if he had
picked up anything. Aragon told Villasenor everything would be
all right because the police did not have the gun or any evidence.
Villasenor initially spoke to the police because they
threatened to take her children away if she did not cooperate. At
that time she told them Aragon’s initial story, that Aragon and
Adkins fought and a shot was fired, but Aragon did not know
where the shot came from. Subsequently, Villasenor’s
relationship with Aragon soured when she learned he had
married someone else. Villasenor then provided details to the
police that she had not previously disclosed.
At the hospital, Adkins told police that during the incident,
someone said, “Shoot him. Shoot him.” Adkins identified Aragon
from a photographic lineup and stated Aragon had kicked him,
punched him, and shot him in the stomach. At trial, Adkins
denied knowing who shot him.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) amended 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,

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subd. (f).) Senate Bill No. 1437 amended section 188 to require
that a principal “shall act with malice aforethought. Malice shall
not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3), as amended by
Stats. 2018, ch. 1015, § 2.)
Senate Bill No. 1437 also added what is now section 1172.6,
providing a procedure by which those convicted of murder under
the former law can seek retroactive relief if the amendments
affect their previously sustained convictions. (Stats. 2018,
ch. 1015, § 2.) Senate Bill No. 775 (2021–2022 Reg. Sess.)
amended section 1172.6 to permit individuals convicted of
attempted murder on a natural and probable consequences
theory to petition for relief as well. (Stats. 2021, ch. 551, § 2.)
When a petitioner files a section 1172.6 petition, the court
first appoints counsel if requested, and then conducts a prima
facie analysis of the petitioner’s eligibility, with briefing from the
parties. (§ 1172.6, subd. (c); People v. Lewis (2021) 11 Cal.5th
952, 961–970 (Lewis).) 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, at p. 971.)
“A petitioner is ineligible for resentencing as a matter of
law if the record of conviction conclusively establishes, with no
factfinding, weighing of evidence, or credibility determinations,
that (1) the petitioner was the actual [perpetrator], or (2) the
petitioner was not the actual [perpetrator], but, with the intent to
kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual [perpetrator], (3) the petitioner

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was a major participant in the underlying felony and acted with
reckless indifference to human life, or (4) the petitioner acted
with malice aforethought that was not imputed based solely on
participation in a crime.” (People v. Lopez (2022) 78 Cal.App.5th
1, 14.) This is a purely legal conclusion, which we review de
novo. (See Lewis, supra, 11 Cal.5th at p. 961.)
II. Jury Instructions
The jury was instructed on aiding and abetting liability
with CALCRIM Nos. 400 and 401. CALCRIM No. 400, as given
here, provides that a person “may be guilty of a crime in two
ways. One, he may have directly committed the crime. I will call
that person the perpetrator. Two, he may have aided and abetted
a perpetrator, who directly committed the crime. A person is
equally guilty of the crime whether he committed it personally or
aided and abetted the perpetrator who committed it.” (Former
CALCRIM No. 400.)
CALCRIM No. 401, as given here, sets forth the elements of
aiding and abetting liability. “To prove that the defendant is
guilty of a crime based on aiding and abetting the crime, the
People must prove that: [¶] 1. The perpetrator committed the
crime; [¶] 2. The defendant knew that the perpetrator intended to
commit the crime; [¶] 3. Before or during the commission of the
crime, the defendant intended to aid and abet the perpetrator in
committing the crime; [¶] AND [¶] 4. The defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission of
the crime. [¶] Someone aids and abets a crime if he knows of the
perpetrator’s unlawful purpose and he specifically intends to, and
does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.” (CALCRIM No. 401.)

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 The court also instructed the jury with CALCRIM No. 600:
“The defendant is charged in Count One with Attempted Murder.
[¶] To prove that the defendant is guilty of attempted murder, the
People must prove that: [¶] 1. The defendant took at least one
direct but ineffective step toward killing another person; [¶] AND
[¶] 2. The defendant intended to kill that person.” (CALCRIM
No. 600.)
The jury was not instructed on the natural and probable
consequences doctrine.
III. Intent to Kill
Aragon argues he was convicted of attempted murder
under aiding and abetting jury instructions that did not require
the aider and abettor to share the actual perpetrator’s intent to
kill, and that he therefore may have been convicted on an
imputed malice theory even though no natural and probable
consequences theory was presented to the jury. He contends
CALCRIM No. 401 was confusing and inadequate because it did
not specify to which of the charged crimes the instruction was
intended to apply, and the phrase “the crime” could have referred
to either the attempted murder or the assault with a firearm. We
are not persuaded.
We “must consider the instructions together as a whole, to
determine whether it is reasonably likely a jury would interpret
an instruction in a particular way, because we presume jurors
understand and correlate all of the instructions” (People v. Burton
(2018) 29 Cal.App.5th 917, 925) and the jurors are “presumed to
have followed the court’s instructions.” (People v. Sanchez (2001)
26 Cal.4th 834, 852.) CALCRIM No. 401 instructed the jury that
to find Aragon guilty of “a crime” based on “aiding and abetting
that crime,” the People had to prove he knew the perpetrator

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intended to commit “the crime” and Aragon intended to aid and
abet the perpetrator in committing it. The jury was told that a
person aids and abets “a crime” if he knows of the perpetrator’s
unlawful purpose and intends to aid the perpetrator’s commission
of “that crime.” (Italics added.) The jury was also instructed by
CALCRIM No. 600 that attempted murder requires the intent to
kill.
Therefore, CALCRIM Nos. 600 and 401 together advised
the jury that for a person to be guilty of attempted murder as an
aider and abettor, the person had to know the perpetrator
intended to kill and to have intended to aid the perpetrator in
committing the killing. We find it implausible that the jury could
have interpreted the repeated references to “the crime” or “a
crime” in CALCRIM No. 401 to mean a different crime than the
offense the jury was evaluating—that is, we cannot conceive of a
reasonable jury reading CALCRIM No. 401 to invite it to decide
whether Aragon was guilty of the crime of attempted murder as
an aider and abettor by determining whether he aided and
abetted a different crime. Contrary to Aragon’s assertion, no
reasonable jury applying CALCRIM Nos. 400, 401, and 600 could
have found Aragon guilty of attempted murder as an aider and
abettor without finding he had the intent to kill.
Our view is not changed by the jury’s not true finding on
the special allegation that the attempted murder was committed
willfully, with deliberation, and with premeditation. Aragon
argues the not true finding on the allegation means the jury
“must have decided [he] did not intend to kill.” Logically, the
jury’s negation of the conjunction—its rejection of a multi-
element allegation as a whole—does not signify that the jury
necessarily rejected each element of that allegation. All we may

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conclude from the jury’s not true finding on the allegation that
the attempted murder was committed “willfully, deliberately, and
with premeditation” is that the jury believed that one or more of
those conditions did not apply, not that it must have found all
three conditions absent. Therefore, the jury’s finding cannot be
interpreted as an express finding that he had no intent to kill, as
Aragon argues. To the contrary, as discussed above, under the
instructions given the jury could not have convicted Aragon of
attempted murder unless it found he intended to kill.
Aragon complains that although the prosecutor argued he
was the shooter and he intended to kill Adkins, “the prosecutor
never argued that appellant as an aider and abettor personally
acted with express malice, as required for an attempted murder
conviction as an aider and abettor.” It appears that when the
prosecutor addressed this alternative theory of guilt, the primary
theory being that Aragon was the actual shooter, the prosecutor
did not specifically argue Aragon acted with express malice,
although he did argue that even if a person other than Aragon
was the shooter, they shared a common purpose of retribution,
Aragon knew what they were about to do, and Aragon intended
either through words or conduct to assist in the commission of
the crime. However, Aragon does not allege the prosecutor
misstated the law, nor did he object to the prosecutor’s argument.
Additionally, the jury was instructed with CALCRIM No. 200,
providing that if the jury believed the attorneys’ comments on the
law conflicted with the court’s instructions, they were to follow
the court’s instructions; and immediately before closing
argument, the court reiterated that if an attorney misstated the
law the jury was to rely “upon the law as I have stated it to you.”
Between these instructions and the court’s other instructions

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requiring the aider and abettor to share the perpetrator’s intent
to kill in order to be convicted of attempted murder on an aiding
and abetting theory, we perceive no likelihood that the jury
would have understood the prosecutor’s failure to explicitly argue
Aragon acted with express malice as authorization to convict
Aragon of attempted murder without him intending to unlawfully
kill. (People v. Smith (2005) 37 Cal.4th 733, 739 [express malice
and the intent to unlawfully kill are essentially the same].)
Aragon next argues that the “equally guilty” language in
former CALCRIM No. 400 allowed the “jury to convict a
defendant of murder or attempted murder based on the mental
state of the perpetrator, without considering the defendant’s own
mental state.” (Former CALCRIM No. 400 [“A person is equally
guilty of the crime whether he . . . committed it personally or
aided and abetted the perpetrator who committed it”].) While we
recognize courts have considered the “equally guilty” language
problematic in at least some instances (see People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1165; People v. Nero (2010)
181 Cal.App.4th 504, 518), we do not judge a single jury
instruction in isolation. (People v. Moore (1996) 44 Cal.App.4th
1323, 1330–1331.) Here, although the jury was told that an aider
and abettor is “equally [as] guilty” as the direct perpetrator, it
was also instructed by CALCRIM No. 401 that an aider and
abettor must (1) know of the perpetrator’s intent to commit the
crime, (2) intend to facilitate or assist the perpetrator in
committing the crime, and (3) act in a manner that assists or
facilitates the perpetrator’s commission of the crime. Therefore,
the jury was told that to find Aragon guilty of attempted murder
as an aider and abettor, he must have been aware of the shooter’s
intent to kill and intentionally facilitated the commission of the

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attempted murder. “This instruction advised the jury that it
must base its decision of each [person’s] liability not simply on
the mental state of the direct perpetrator of the crime, but on
that [person’s] state of mind and the extent to which he knew of
and intended to facilitate the purpose contemplated by the
perpetrator.” (People v. Mejia (2012) 211 Cal.App.4th 586, 625.)
Because the jury instructions established that the jury
necessarily had to find Aragon acted with the intent to kill to be
guilty of attempted murder on an aiding and abetting theory, we
reject Aragon’s assertion that he may have been convicted under
a theory of imputed malice that was for all practical purposes a
theory of natural and probable consequences. The trial court
properly denied Aragon’s petition at the prima facie analysis
stage because Aragon was ineligible for section 1172.6 relief as a
matter of law.2

2 The parties also dispute the scope of section 1172.6, with
Aragon arguing relief is available to persons whose attempted
murder convictions were based on any theory in which malice
was imputed solely on the basis of a person’s participation in a
crime, and the People maintaining section 1172.6 relief is limited
to attempted murder convictions based on the natural and
probable consequences doctrine. We need not resolve this debate
because, as discussed above, the record shows the jury was
instructed on a direct theory of aiding and abetting with the
instruction that an attempted murder conviction requires the
intent to kill. Therefore, if Aragon was convicted of attempted
murder as an aider and abettor rather than as the direct
perpetrator, the jury necessarily found him to be a direct aider
and abettor who had the intent to kill, making him ineligible for
relief as a matter of law under either party’s interpretation of the
statute. “Direct aiding and abetting remains a valid theory of

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 DISPOSITION
The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.

attempted murder after the enactment of Senate Bill No. 775.”
(People v. Coley (2022) 77 Cal.App.5th 539, 548.)

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