Filed 3/19/24 P. v. Cisneros CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B329766
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA329573)
v.
ERNESTO CISNEROS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
_______________________________
MEMORANDUM OPINION1
Defendant Ernesto Cisneros appeals from the denial of his
petition for resentencing pursuant to Penal Code2 section 1172.6
(former § 1170.953). We find no error and affirm.
A. Procedural Background
An information, filed on May 22, 2008, charged Cisneros
with one count of second degree murder (§ 187, subd. (a)) and two
counts of willful, deliberate, and premediated attempted murder
(§§ 187, subd. (a); 664). The information further specially alleged
as to all three counts that Cisneros personally and intentionally
discharged a firearm causing great bodily injury to the named
victims. (§ 12022.53, subds. (b-d).)
After trial, the jury found Cisneros guilty on all counts and
found the firearm-related special allegations true. When
Cisneros appealed, we reversed the murder conviction but did not
disturb the attempted murder convictions or the true findings on
the attempted murder related special allegations. (People v.
Cisneros (Dec. 7, 2010, B216165) [nonpub. opn.].) The People did
1 We resolve this case by memorandum opinion because it
“is determined by a controlling statute which is not challenged for
unconstitutionality and does not present any substantial question
of interpretation or application.” (Cal. Stds. Jud. Amin., § 8.1(1).)
We set forth only those portions of the factual and procedural
history necessary to explain our disposition.
2 All unspecified statutory references are to the Penal Code.
3 The Legislature renumbered the statute as section
1172.6, with no change in text, effective June 30, 2022 (Stats.
2022, ch. 58, § 10). For ease of reference, we use the current
citation at section 1172.6 throughout this opinion.
2
not retry the murder charge, and the trial court ultimately
sentenced Cisneros to an aggregate prison term of 80 years to
life.
On March 10, 2022, Cisneros filed a petition for
resentencing on the two attempted murder convictions and
requested appointment of counsel. The trial court appointed
counsel as requested. After further briefing from both parties,
and without holding an evidentiary hearing, the trial court
concluded that Cisneros was ineligible for relief as a matter of
law because the jury was not instructed on the natural and
probable consequences doctrine, and the jury’s verdict showed
that Cisneros was the actual shooter and had a specific intent to
kill.
Cisneros now appeals the denial of resentencing relief. His
appointed appellate counsel filed a brief raising no issues and
requesting that we exercise our discretion to independently
review the record for error pursuant to People v. Delgadillo (2022)
14 Cal.5th 216. In Delgadillo, our Supreme Court established
procedures for cases in which counsel determines that an appeal
from an order denying postconviction relief lacks merit. In such
cases, “(1) counsel should file a brief informing the court of that
determination, including a concise recitation of the facts bearing
on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the
defendant of the right to file a supplemental letter or brief and
that if no letter or brief is filed within 30 days, the court may
dismiss the matter.” (Id. at pp. 231-232.) If the defendant does
not file a supplemental brief, we “may dismiss the appeal as
abandoned.” (Id. at p. 232.) In that instance, we do “not need to
write an opinion but should notify the defendant when [we]
3
dismiss[ ] the matter.” (Ibid.) Because a defendant who has been
denied postconviction relief has no constitutional right to an
appeal, we are not required to conduct an independent review of
the record before dismissing the appeal, but we may conduct such
a review at our discretion. (Id. at pp. 227-228, 232.)
If the defendant does file a supplemental brief or letter, we
are “required to evaluate the specific arguments presented in
that brief and to issue a written opinion. The filing of a
supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues.” (People v.
Delgadillo, supra, 14 Cal.5th at p. 232.)
On February 5, 2024, we notified Cisneros by letter of the
no-merits brief filed by his counsel and informed him that he had
30 days to file a supplemental brief.4 We received Cisneros’s
supplemental brief on February 26, 2024. We therefore turn to
addressing the arguments made in that supplemental brief.
B. Cisneros Is Ineligible for Relief Under Section 1172.6
Section 1172.6 was enacted by the Legislature in 2018 as
part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The
legislation’s overall purpose was “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).) To accomplish this, the bill
4 In a declaration submitted with his brief, Cisneros’s
counsel averred that he sent Cisneros a copy of counsel’s brief
along with a copy of the entire record on appeal.
4
added section 189, subdivision (e) “to amend the felony-murder
rule,” and added section 188, subdivision (a)(3) “to amend the
natural and probable consequences doctrine.” (People v. Gentile
(2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 775 (2021-2022
Reg. Sess.) later expanded section 1172.6 to allow persons
convicted of attempted murder under the natural and probable
consequences doctrine to apply for resentencing. (Stats. 2021,
ch. 551, § 2.)
“[A]ttempted murder requires a specific intent to kill.”
(People v. Mumin (2023) 15 Cal.5th 176, 190.) Formerly, such
malice could be implied in an attempted murder prosecution
“ ‘ “when a person willfully does an act, the natural and probable
consequences of which are dangerous to human life, and the
person knowingly acts with conscious disregard for the danger to
life that the act poses.” ’ [Citation.] [¶] . . . The natural and
probable consequences doctrine provides that ‘ “[a] person who
knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural
and probable consequence of the intended crime.” ’ [Citation.]”
(People v. Offley (2020) 48 Cal.App.5th 588, 595.) Now, because
of Senate Bill No. 775, implying malice via the natural and
probable consequences doctrine can no longer support an
attempted murder conviction.
As relevant here, section 1172.6 provides a mechanism for
a defendant to seek resentencing where (1) an information was
filed against the defendant that allowed an attempted murder
prosecution to proceed under the natural and probable
consequences doctrine, and (2) the defendant could not now be
convicted of attempted murder under the present law. (§ 1172.6,
5
subd. (a).) Cisneros does not meet this eligibility test, because he
was not prosecuted for attempted murder based on the natural
and probable consequences doctrine. As to the attempted murder
charges, the jury was not instructed on the natural and probable
consequences doctrine, aiding or abetting, or any other theory
under which malice would be implied. Instead, his attempted
murder prosecution and resulting convictions were based solely
on express malice and Cisneros being the actual shooter.
Cisneros’s supplemental brief argues the instructions given
at his trial did not require the jury to find that he intended to kill
the victims named in the attempted murder counts. This is not
correct. The instructions expressly required that to convict
Cisneros of attempted murder, the jury had to find he acted with
“express malice aforethought, namely, a specific intent to kill . . .
another human being.” The instructions further stated that to
find true the special allegation that the attempted murder was
willful, deliberate, and premeditated (which the jury did as to
both counts), the jury had to conclude that each “attempted
murder was preceded and accompanied by a clear, deliberate
intent to kill, which was the result of deliberation and
premeditation.”
Cisneros also argues the court erred because an additional
“kill zone” instruction given to the jury was functionally
equivalent to a natural and probable consequences instruction
and permitted “the jury to infer intent to kill based upon the
participation in a separate crime.” Assuming without deciding
that section 1172.6 relief is available to a petitioner convicted of
attempted murder under a theory of implied malice other than
6
the natural and probable consequences doctrine,5 we reject
Cisneros’s argument. The kill zone theory of attempted murder
is not a theory of implied malice, but instead a “theory for
establishing the specific intent to kill required for conviction of
attempted murder.” (People v. Canizales (2019) 7 Cal.5th 591,
607.) The kill zone theory does not impute or imply malice in the
absence of a specific intent to kill; it requires the jury find a
specific intent to kill and states that in certain circumstances
such specific intent can apply to more than one victim. “ ‘[I]n a
kill zone case, the defendant has a primary target and reasons
[that] he cannot miss that intended target if he kills everyone in
the area in which the target is located.’ ” (Ibid.) Thus, to convict
a defendant under the kill zone theory, the jury must find that
the “defendant intended to kill everyone in the kill zone as a
means of killing the primary target.” (People v. Mumin, supra, 15
Cal.5th at p. 211.)
Thus, all of the instructions given at Cisneros’s trial
required the jury to find he specifically intended to kill the
victims named in the attempted murder counts. The kill zone
instruction required the jury to find (if the jury was to rely upon
5 Section 1172.6, subdivision (a)’s plain language states
that it affords relief to petitioners convicted of “attempted murder
under the natural and probable consequences doctrine” and not
any other theory or doctrine. This contrasts with the statutory
language governing murder convictions, which extends more
broadly to any “theory under which malice is imputed.”
(§ 1172.6, subd. (a).) To be eligible for relief under section 1172.6,
Cisneros must show that he can no longer be convicted of murder
“because of changes to [s]ection 188 or 189 made effective [by
Senate Bill No. 1437].” (§ 1172.6, subd. (a)(3).) But Senate Bill
No. 1437 made no changes to the kill zone theory.
7
that theory) that Cisneros “primarily intend[ed] to kill one
person,” and “intended to kill [that] primary victim by killing
everyone in that victim’s vicinity.” None of the attempted murder
instructions given at Cisneros’s trial involved another
perpetrator. None of the attempted murder instructions
permitted the jury to impute another perpetrator’s malice to
Cisneros, or to rely on implied malice. All of the attempted
murder instructions instead required the jury find Cisneros
himself had the specific intent to kill the named victims. Thus, in
convicting Cisneros of two counts of willful, deliberate, and
premeditated attempted murder and finding true the allegations
that he personally and intentionally shot the victims, the jury
had to and did find Cisneros was the actual shooter and that he
harbored the specific intent to kill.
The jury’s verdict thus reflects all the factual findings
necessary to support an attempted murder conviction under
current law, and conclusively refutes Cisneros’s allegation that
he could no longer be convicted of attempted murder because of
the changes to sections 188 and 189. (People v. Curiel (2023) 15
Cal.5th 433, 465.) Cisneros was therefore ineligible for relief as a
matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 971.)6 The
6 We reject Cisneros’s claim of ineffective assistance of
counsel by his appellate counsel. To prevail on such a claim,
Cisneros must establish (1) counsel’s performance fell below an
objective standard of reasonable competence, and (2) Cisneros
was prejudiced. (Strickland v. Washington (1984) 466 U.S. 668,
687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Cisneros fails to identify
any meritorious issue his counsel failed to raise and therefore has
not demonstrated any deficiency in counsel’s performance or any
resulting prejudice.
8
trial court accordingly did not err in summarily denying the
resentencing petition. (People v. Delgadillo, supra, 14 Cal.5th at
p. 233 [a defendant is not entitled to relief, and a resentencing
petition is properly denied at the prima facie stage, where the
record of conviction makes ineligibility for relief clear].)
Finally, we decline counsel’s request that we independently
review the record, as nothing before us suggests such an exercise
is necessary. (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The trial court’s order denying Cisneros’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
9