Opinion
F085925
11-28-2023
THE PEOPLE, Plaintiff and Respondent, v. CORTNEY DEJOHN FLEMMING, Defendant and Appellant.
James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. F08902302. Heather Mardel Jones, Judge.
James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2009, defendant Cortney DeJohn Flemming was convicted of murder and attempted murder, and the jury found true allegations defendant personally discharged a firearm and personally used a firearm that caused death or great bodily injury (Pen. Code, § 12022.53, subds. (c), (d)). (Undesignated statutory references are to the Penal Code.) His codefendant, Luciano Lopez, was also convicted of murder and attempted murder and the jury found true allegations Lopez was a principal in the offenses and was armed with a firearm (§ 12022, subd. (a)(1)). The jury was instructed on the natural and probable consequences doctrine as a theory of liability for Lopez.
In 2022, defendant petitioned pro se for relief from his murder and attempted murder convictions under section 1172.6. The court denied defendant's petition at the prima facie stage on the grounds that defendant was the actual killer who acted with the intent to kill. The court stated the instructions regarding the natural and probable consequences doctrine referred to Lopez, and the true finding on the section 12022.53, subdivision (d) enhancement as to defendant established the jury convicted him as the shooter.
On appeal, defendant argues the court erred in denying his petition at the prima facie stage because his jury was instructed on the natural and probable consequences theory and could have convicted him under that theory. The People disagree, asserting the record establishes defendant was the actual killer and could not have been convicted based on a theory of vicarious liability.
We affirm the court's order denying defendant's section 1172.6 petition.
FACTUAL AND PROCEDURAL HISTORY
In 2008, defendant and Lopez were charged with murder of Fidel Jimenez (§ 187; count 1) with an allegation defendant personally and intentionally discharged a firearm which proximately caused great bodily injury or death to Fidel Jimenez (§ 12022.53, subd. (d)). As to Lopez, it was alleged that, in the commission and attempted commission of the murder, a principal was armed with a firearm (§ 12022, subd. (a)(1).) Defendant and Lopez were also charged with attempted murder of Adam Joseph Mirelez (§§ 664, 187, subd. (a); count 2). With regard to count 2, it was alleged that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). With regard to Lopez, it was alleged that, in the commission and attempted commission of the attempted murder, a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Following a trial, a jury convicted defendant of second degree murder (count 1) and attempted murder (count 2) and found true the section 12022.53, subdivision (d) firearm enhancement as to count 1 and the section 12022.53, subdivision (c) enhancement as to count 2. Codefendant Lopez was also found guilty as charged and the section 12022, subdivision (a)(1) enhancement allegations against him were found true. Defendant was sentenced to 15 years to life on count 1, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement finding. He was sentenced on count 2 to the middle term of seven years, plus 20 years for the section 12022.53, subdivision (c) enhancement finding, each to run consecutive to the term on count 1.
Petition for Resentencing
In 2022, defendant filed a petition for resentencing pursuant to section 1172.6 (former § 1170.95). He averred a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory, the natural and probable consequences doctrine, or other theory under which malice was imputed based solely on participation in the crime; at trial, he was convicted of murder, attempted murder, or manslaughter or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and he could not now be convicted of murder or attempted murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)). He also requested the appointment of counsel.
Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at that time, although prior changes had been implemented effective January 1, 2022. There is no dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the statute as section 1172.6.
The court appointed defendant counsel and the People filed a response to his petition. In their briefing, the People argued defendant was ineligible for relief as a matter of law because the jury instructions revealed no felony-murder instructions were given; there were no instructions regarding some "other theory" under which malice was imputed; and the instructions on the natural and probable consequences doctrine on their face only applied to Lopez. They attached the jury instructions to their opposition.
The court instructed the jury, in part: "Both defendants in this case are charged with the same crimes but their responsibilities, if any, is based in some cases on different theories of liability. You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately." The court instructed the jury on the natural and probable consequences doctrine as follows:
"Under some specific circumstances if the evidence establishes aiding and abetting of one crime a person may also be found guilty of other crimes that occurred during the commission of the first crime. In this case the prosecution has offered three theories to hold ... Lopez responsible for the crimes in counts 1 and 2. Whether any of these theories applies depends on what you find the facts to be. I will try and explain which instructions apply to which theories. [¶] The charged ... crime is murder in count 1 or attempted murder in count 2. That's the charged crime.
"The three theories of liabilities are these: One, a defendant who engages in conduct that is an element of the charged crime is a perpetrator of the completed crime, not an aider and abetter [sic]. Two, a defendant ... who is simply an aider and abetter [sic] to the charged crime itself. And three, a defendant is an aider and abetter [sic] to an uncharged crime and the charged crime is a natural and probable consequences of that uncharged crime. [¶] . [¶]
"Aiding and abetting to prove .. Lopez is guilty of a crime based on aiding and abetting that crime the People must prove that: One, the perpetrator committed the crime. Two, the defendant knew that the perpetrator intended to commit the crime. Three, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime. And four, 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. If all of these requirements are proved the defendant does not actually have to be present when the crime was committed to be guilty as an aider and abetter [sic].
"If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime you may consider that fact in determining whether the defendant was an aider and abetter [sic]. However, the fact that a person is present at the scene of a crime or fails to prevent a crime does not by itself make him an aider and abetter [sic].
"Before you may decide whether .. Lopez is guilty of murder than attempt [sic] and attempted murder under the natural and probable consequences doctrine of aiding and abetting an uncharged crime you must decide whether he's guilty of assault by firearm or assault by means likely to produce great bodily injury.
"To prove that the defendant is guilty of murder or attempted murder .. under this theory the People must prove that: One, the defendant is guilty of assault by firearm or assault by means likely to produce great bodily injury. Two, during the commission of assault by firearm or means likely to produce great bodily injury a co-participant in that assault committed the crime of murder for count 1 or attempted murder for count 2. Three, under all the circumstances a reasonable person in the defendant's position would have known the commission of murder or attempted murder or a natural and probable consequence of the commission of assault by firearm or assault by means likely to produce great bodily injury.
"A co-participant in a crime is the perpetrator or anyone that aided and abetted the perpetrator, does not include a victim or innocent bystander.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable consider all the circumstances established by all the evidence.
"If the murder or attempted murder was committed for a reason independent of the common plan to commit the assault by firearm or means likely to produce great bodily injury then the commission of murder or attempted murder was not a natural and probable consequence of assault by firearm or assault by means likely to produce great bodily injury.
"A natural and probable consequence is a foreseeable consequence. Precise consequence need not have been for seen [sic].. [¶] To be reasonably foreseeable the consequence need not have been a strong probab[ility], a consequence which might reasonably have been contemplated is enough....
"To decide whether the crime of murder or attempted murder was committed please refer to the separate instructions that I will give you on those crimes."
The court also instructed the jury on uncharged crimes related to the natural and probable consequences doctrine instructions:
"Assaults with a firearm or assault with force likely to produce great bodily injury to 245(a). To prove the defendant guilty of this crime the A1, a person did an act with a firearm that by its nature would directly and probably result in the application of force to a person. Or 1B, that the defendant did an act that by its nature would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury. Two, a person did that act willfully. Three, when the person acted he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. Four when the person acted he had the present ability to apply force with a firearm ... [¶] ... or force likely to produce great bodily injury to a person. And five, the person did not act in self-defense or defense of others.
"Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone or gain an advantage.... [¶] The People are not required to prove that a person actually intended to use force against someone when he acted. No one needs to have actually need to be injured [sic] by the defendant's act but if somebody was injured you may consider that fact along with all the other evidence to prove the person committed an assault if so what kind of assault it was."
The court explained "[t]hose are the theories of liability based on aiding and abetting," and it would now "start with the theories of homicide." The court instructed, "The defendants are charged in count 1 with murder in violation of Penal Code Section 187. To prove that a defendant is guilty of this crime the People must prove that: One, a defendant committed an act that caused the death of another person. Two, when the defendant acted he had a state of mind [sic]. Three, he killed without lawful excuse or justification." The court also instructed the jury, in part, on express and implied malice and that "[p]roof of either is sufficient to establish the state of mind required for murder," the doctrine of transferred intent, lesser included offenses, and complete and imperfect self-defense. For attempted murder, the court instructed the jury, "the People must prove that: One, the defendant took a direct but ineffective step towards killing another person. And two, the defendant intended to kill that person."
In their opposition, the People argued, because the jury was not instructed on the natural and probable consequences doctrine or felony murder as a basis for convicting defendant of murder, the jury necessarily found that defendant acted with malice. Additionally, they argued "[t]he jury's further finding that [defendant] personally discharged a firearm causing death reinforces and confirms these findings." They asserted, "[i]n finding this enhancement true, the jury plainly found that defendant shot and killed the victim." With regard to this enhancement, the court instructed the jury: "To prove such an allegation the People must prove: One, that [defendant] personally discharged a firearm during the commission of that crime. Two, [defendant] intended to discharge a firearm. And three [defendant] did cause the death of a person...." The People also attached our court's opinion from defendant's direct appeal to their opposition.
On February 9, 2023, the trial court held a hearing on defendant's petition during which it concluded defendant failed to establish a prima facie case for relief. The court explained it read the transcript of the jury instructions regarding the natural and probable consequences doctrine to pertain to Lopez. Defense counsel argued, "I think the Court intended that, but I don't think that's the only reading of that and on the basis of prima facie standard, that's enough." The court responded it did not know if it agreed with that, and the court permitted the prosecutor to respond.
The prosecutor agreed with the court's interpretation in that the "natural and probable consequences instructions only pertains to ... Lopez, the codefendant." The prosecutor further argued, "[T]he finding on the enhancement really clarifies everything because . . . the jury found beyond a reasonable doubt that [defendant] personally discharged the weapon in the commission of ... both counts." He contended, the petition should be denied for failing to state a prima facie case because the jury instructions and verdicts revealed that defendant was convicted as the shooter.
Defense counsel argued the enhancement did not establish, as a matter of law, that defendant was the actual killer or the principal; it did not "imply malice conclusively." And "[o]nce you allow for natural and probable consequences on a 245, which was the predicate crime for the natural and probable consequences doctrine in this, then that malice . . . can be implied by the commission of that crime and he could have been convicted on that theory."
After hearing arguments, the court stated it wanted to look at a few points and some case law. Additionally, its preference was to have a "written decision." Thereafter, in a written order filed March 1, 2023, the court denied defendant's section 1172.6 petition for resentencing, concluding defendant failed to establish a prima facie showing of eligibility and he is ineligible for relief as a matter of law.
The court held defendant "was not convicted based on felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, nor attempted murder under the natural and probable consequences doctrine, nor manslaughter, as is required by . . . § 1172.6 to be eligible for resentencing. Evidenced by the jury verdicts, [defendant] was the direct killer of victim Jimenez and directly attempted to kill victim Mirelez, and in both circumstances personally and intentionally used a firearm." That is, "the record of conviction, trial transcript and jury verdicts demonstrate, beyond a reasonable doubt, that [defendant] was the actual killer who acted with the intent to kill and was, and continues to be, guilty of murder, including under California law as amended by the changes to §§ 188 or 189 made effective January 1, 2019."
The court reasoned, with respect to defendant, "no argument was made nor jury instructions given on felony murder, natural and probable consequences murder or natural and probable consequences attempted murder, nor any other theory of imputed malice. The only reference to the 'natural and probable consequences doctrine' and the corresponding jury instructions, was made only with respect to .. co-defendant Lopez. This is further consistent with the jury's finding that [defendant] 'personally and intentionally' used a firearm as to both Count 1 and Count 2, whereas with respect to codefendant Lopez, the jury found that a 'principal' (i.e.: [defendant]) was armed with a firearm pursuant to ... § 12022(a)(1).)"
DISCUSSION
I. Senate Bill 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[s] 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).) It amends section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Accordingly, section 188 now provides that, "[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, 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." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"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. [¶] (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."
The legislation also added section 1172.6 (former § 1170.95), which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, this section permitted those "convicted of felony murder or murder under a natural and probable consequences theory [to] 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 ...." (Stats. 2018, ch. 1015, § 4, subd. (a).) In Senate Bill No. 775 (2021-2022 Reg. Sess.), effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory. The legislation also clarified some of the procedural requirements in the statute.
Pursuant to amended section 1172.6, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) If the petitioner has made such a showing that the petitioner is entitled to relief, the court "shall issue an order to show cause." (Ibid.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid.)
The trial court may look at the record of conviction to determine whether a petitioner has made a prima facie case for section 1172.6 relief, but the prima facie inquiry under subdivision (c) is limited. (People v. Lewis (2021) 11 Cal.5th 952, 971.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.]" (Ibid.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.]" (Id. at p. 971.) "'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."' [Citations.]" (Ibid.)
II. Analysis
Defendant contends the jury was instructed on the natural and probable consequences theory and "was not required to accept the prosecutor's theory of the case, agree upon who was the perpetrator and the aider and abettor, or even individually determine the particular theory of liability." He argues, "the instructions that were delivered in this case are ambiguous and left open the possibility that the jury convicted [defendant] of murder and attempted murder under the natural and probable consequences doctrine." That is, "nothing in the instructions or law precluded the jury from relying upon [the natural and probable consequences] theory in convicting [defendant] of these offenses." He concedes the prosecution offered the natural and probable consequences doctrine as a theory of codefendant Lopez's guilt, but asserts the instruction referred to "a defendant," which could refer to either Lopez or defendant. Additionally, he contends "the instruction on the target crimes of assault with firearm [sic] and assault with a means of force likely to produce great bodily injury permitted the jury to find that [defendant] was only an aider and abettor of these uncharged crimes. That is because the two target crimes were described as follows: 'the A1, a person did an act with a firearm that by its nature would directly and probably result in the application of force to a person. Or 1B, that the defendant did an act that by its nature would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury." So, the jury could have reasonably inferred that Lopez was "the defendant" or "a person," namely, the perpetrator of the assault, particularly because the court found "the defendant" in the natural and probable consequences instruction exclusively referred to Lopez. He also contends the true finding on the section 12022.53, subdivision (d) firearm use allegation did not conclusively establish his ineligibility for relief. The People respond the record, namely the jury instructions, the prosecutor's argument reflecting the theory of guilty, and the jury verdicts, establish defendant was the actual killer and ineligible for relief. They assert the jury was only instructed on defendant's direct liability as the actual killer and the instructions related to aiding and abetting and the natural and probable consequences doctrine were expressly limited to Lopez. They also assert the prosecutor's theory of liability as to defendant was clear, referring in part to the prosecutor's closing argument: "In this particular case [defendant] pulls the trigger. [¶] ... Lopez can be viewed as either an aider and abetter [sic] or he can be viewed directly as a principal." On reply, defendant argues the People "conflate[] direct perpetrator liability with felony murder liability under section 189, subdivision (e)(1)." He asserts, the People's references to defendant as the "actual killer" are misplaced because the jury was not instructed on first or second degree felony murder. He again argues the section 12022.53, subdivision (d) finding did not establish defendant acted with malice aforethought, rendering him ineligible for relief. Defendant further contends "the jury was not required to accept the prosecution's theory of the case," and asserts the instructions "were ambiguous and left open the possibility that the jury could have convicted [defendant] of murder and attempted murder under the natural and probable consequences doctrine."
The People also filed a separate request for us to exercise our authority under Evidence Code section 459 and take judicial notice of the records in the direct appeal of the judgment at issuePeople v. Lopez et al. (Oct. 14, 2011, F059255)-and the record of the codefendant's appeal from the denial of his resentencing petition following their joint trialPeople v. Lopez (Aug. 2, 2023, F082947). Defendant filed an opposition to the request for judicial notice as it relates to the record in People v. Lopez, supra, F082947, including our court's opinion in that case. He argued he was not a party to the proceedings in that case, and the appellate record of those proceedings is not relevant or admissible in his appeal from the denial of his section 1172.6 petition. Defendant also argued there is no indication the trial court here considered the record in People v. Lopez, supra, F082947, and defendant's appellate counsel had not received or reviewed a copy of the record in that case. With regard to the appellate opinion in that case, he asserts the portion of the opinion cited by the People to show the prosecution's theory was that defendant was the shooter and Lopez was an aider and abettor is inadmissible because it is not "the procedural history of the case .." Additionally, it is not part of defendant's "record of conviction," and is thus "not admissible in his section 1172.6 proceedings at all." Notably, defendant does not appear to oppose the People's request that we take judicial notice of the record from his direct appeal from the judgment in People v. Lopez et al., supra, F059255. Because there is no opposition to the People's request that we take judicial notice of the record from defendant's direct appeal from the judgment in case People v. Lopez et al., supra, F059255 and we may do so under Evidence Code section 459, subdivision (a), we grant the People's request as it relates to this record. However, in light of defendant's opposition and because it is unnecessary to our resolution of this appeal, we deny the People's request for us to take judicial notice of the record in People v. Lopez, supra, F082947.
We agree with the People that the record of conviction establishes defendant was categorically ineligible for relief. Here, the only theory of guilt the jury was instructed on as it related to defendant was that he was the shooter, and it required the finding defendant harbored a specific intent to kill. Said differently, the jury was not instructed that defendant could be liable for murder or attempted murder based on the natural and probable consequences doctrine, felony murder, or under any other theory pursuant to which malice could be imputed to defendant based upon his participation in the crime. That is, the jury was expressly instructed that the natural and probable consequences theory of liability was only a basis for convicting Lopez of the charged crimes.
Coupled with the jury instructions, the prosecutor's argument further supports our conclusion. (See People v. Lopez (2022) 78 Cal.App.5th 1, 13 [record of conviction for purposes of § 1172.6 includes parties' closing arguments]; People v. Jenkins (2021) 70 Cal.App.5th 924, 935 [same]; People v. Ervin (2021) 72 Cal.App.5th 90, 106; cf. People v. Perez (1992) 2 Cal.4th 1117, 1126 ["[i]t is elementary ... that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury"].) As the People note, the prosecutor argued in closing that defendant was the shooter and, "express malice is a demonstrated intent to kill. When we talked about pointing the gun at somebody's head and pulling the trigger that's as clear as it gets. That is an intent to kill. That person's mind is thinking, I intend to kill you." The prosecutor did not argue the jury could convict defendant of the charged crimes under the natural and probable consequences doctrine or under another theory of imputed malice. Thus, the argument did not create or encourage an erroneous reading of the instructions.
The prosecutor also argued Lopez aided and abetted an assault with a firearm, in part, by providing defendant with a gun. He asserted, "when ... Lopez called out for [defendant] to get that gun and [defendant] pulls that gun out and points it at the truck and the occupants of that truck. The assault is complete." Additionally, "An aider and abetter [sic] is guilty of the consequences of their crimes. ... One who aids and abets another of that crime, he's not only guilty of the crime he aids and abets, in our case, an assault with a firearm, but he is also guilty of any other crime committed by a principal, which is the natural and probable consequences of the crime originally aided and abetted."
And we disagree with defendant's contention that the instructions were ambiguous. As discussed, the court expressly instructed the jury the natural and probable consequences doctrine was a theory of liability related to codefendant Lopez. We presume the jurors are intelligent and capable of understanding and correlating all jury instructions given. (See People v. Holt (1997) 15 Cal.4th 619, 662.) And we also presume they follow the instructions given to them. (Ibid.)
The California Supreme Court's recent opinion, People v. Mumin (2023) 15 Cal.5th 176 (Mumin), as cited by the People, further supports our conclusion. The defendant in Mumin was convicted of two attempted murder charges involving James Mackay and Luke Johnson. (Id. at pp. 188-189.) The Mumin court held a "kill zone" or "concurrent intent instruction should not have been given because it was factually unsupported" as applied to the allegation of attempted murder involving Johnson. (Id. at pp. 188, 210-211.) The Mumin court held Mackay, however, was not harmed by the instruction because "the instruction itself only mentioned Johnson when describing that concept," and the prosecution's "sole theory of liability as to Mackay was that defendant shot at the door intending to kill the person opening it because defendant knew that person had to be one of the officers who had been pursuing him. Those straightforward inferences do not employ a concurrent intent analysis, nor did the district attorney do so when arguing in support of those charges." (Id. at p. 213.) Rather, "[i]n light of the evidence, the given instruction, and the jury argument, defendant could not have been prejudiced as to the count involving MacKay." (Ibid.) Though Mumin involved consideration of the potential for prejudice regarding an instructional error as to a codefendant, it supports a conclusion that jurors are presumed to follow the court's instructions that a particular theory of liability only applies as to one or two codefendants.
Because the facts in the record of conviction refuted defendant's allegations in his petition, the trial court did not err in denying defendant's section 1172.6 petition at the prima facie stage. (See People v. Lewis, supra, 11 Cal.5th at p. 971.)
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
[*]Before Poochigian, Acting P. J., Pena, J. and Snauffer, J.