Opinion
F087467
12-11-2024
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ANTHONY GALLEGOS, Defendant and Appellant.
Douglas C. Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 14CR-00155, Mark V. Bacciarini, Judge.
Douglas C. Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, Acting P. J.
Defendant Carlos Anthony Gallegos appeals from a January 10, 2024 order denying his petition for resentencing pursuant to Penal Code section 1172.6. He contends "the trial court engaged in inappropriate fact-finding at the prima facie stage, requiring reversal." The Attorney General concedes "the trial court engaged in factfinding and weighing of the evidence" but maintains defendant "is not entitled to relief because he was not prejudiced by the error." We conclude there was no prejudicial error and affirm the order.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
I. Case No. F076886
Defendant was charged with first degree murder (§§ 187, subd. (a), 189 [count 1]), robbery (§ 211 [count 2]), burglary (§ 459 [count 3]), and vehicle theft (Veh. Code, § 10851, subd. (a) [count 4]). As to count 1, the information alleged he committed the murder while he was perpetrating a robbery and/or burglary (§ 190.2, subd. (a)(17)), intentionally and personally discharged a firearm and proximately caused death (§ 12022.53, subd. (d)), and served a prior separate prison term (§§ 667.5, former subd. (b), 668).
a. Prosecution's case-in-chief
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their initials or first name. No disrespect is intended.
In connection with this case, Y.C. pled guilty to first degree robbery and admitted she served a prior separate prison term. In exchange for leniency, she agreed to testify.
Y.C. and the victim Jorge Zamora lived in Los Banos in 2010. They were acquaintances since 2009. Y.C. "would always ask [Zamora] for rides" and "he was always there for [her]."
Y.C. met defendant for the first time on May 11, 2010, when she sold methamphetamine to him. Thereafter, they frequently got together to ingest drugs and/or engage in sexual intercourse.
On June 26, 2010, Y.C. and defendant "got in an argument" and defendant "wanted to go back to Salinas," where he lived with his mother. Y.C. contacted Zamora, who offered to let her borrow $40 to purchase a bus ticket for defendant. At around 2:00 or 3:00 p.m., Y.C. and defendant went to a friend's house and smoked methamphetamine. At around 10:00 p.m., they went to another friend's house and smoked more methamphetamine. At around 11:30 p.m., Y.C. and defendant arrived at Zamora's apartment. Initially, only Y.C. entered the residence. Zamora gave her the money and the two spoke for roughly 10 minutes. However, when Y.C. tried to leave, defendant entered and forced her to stay inside. He was armed with a gun. Defendant wanted to take Zamora's car, a blue Chevy Cavalier. He told Y.C., "Bitch, go get the keys to the car." She panicked and "just started looking everywhere." As Y.C. found the keys in the bedroom, she heard a loud gunshot. She ran down the hallway and heard Zamora utter, "Why?" Y.C. and defendant departed.
On June 27, 2010, Y.C. and defendant returned to the apartment and took the Chevy Cavalier. Y.C. drove defendant to his mother's house in Salinas. There, defendant dismantled the vehicle.
On July 6, 2010, Y.C. came across a news article about Zamora's death online. In a text message, Y.C. asked defendant's sister M.G. "[t]o have [defendant] call [her] because [she] had seen the homicide on the Internet" and maintained she "would not tell on him." Later, Y.C. received a communication from defendant advising her to "[s]top calling [him]" because "[t]hey're listening."
Y.C. was subsequently taken into custody. On August 27, 2010, in an interview with Detective Melden of the Los Banos Police Department (LBPD), she told him "[t]he truth" about what had occurred on June 26, 2010.
ii. Kathleen O.
In 2009, Kathleen met defendant through M.G., her drug dealer. Kathleen and defendant got together daily to smoke methamphetamine and/or engage in sexual intercourse.
Sometime after June 26, 2010, defendant visited Kathleen at her home. He appeared "[u]pset" and revealed he and Y.C. "did something bad."
On July 4, 2010, Kathleen and defendant met at a motel in Marina, where defendant recounted the events of June 26, 2010. Defendant stated he and Y.C. had planned to take Zamora's "gold piece" when they went to his apartment. Defendant waited outside while Y.C. entered the apartment. After Y.C. failed to answer his phone calls, defendant entered the apartment "to see what was going on." Defendant encountered Zamora, who was sitting down, and told him "not to get up" and "just stay there." Zamora, however, headed for the kitchen. Defendant and Zamora were "wrestling around" when defendant's gun "went off" and a bullet struck Zamora's chest. Y.C. emerged from a room and said, "Why did you do that?" Defendant and Y.C. left and took Zamora's Chevy Cavalier to Salinas.
At some point, Kathleen, defendant, and M.G. convened at a motel in Salinas. Defendant showed Kathleen the revolver that had been used in the incident. After defendant and M.G. wrapped the gun in a black canvas bag, Kathleen drove them to a nearby "forest area," where M.G. deposited the bag in a ditch. However, the following day, the trio returned and retrieved the bag. Kathleen drove the siblings to their uncle's house. There, defendant gave the revolver to his uncle.
Sometime before June 26, 2010, Kathleen purchased .22-caliber ammunition and gloves for defendant. According to Kathleen, defendant admitted he had worn the gloves at the time of the shooting and "had to get rid of [them]." He also stated he needed to disassemble and dispose of the Chevy Cavalier.
iii. R.B.
R.B. lived across the street from defendant's mother's house. Sometime in June or July 2010, he saw defendant sitting inside a blue Chevy Cavalier.
iv. Detective Melden
On June 29, 2010, Melden-the lead investigator-arrived at Zamora's apartment after officers found the victim's body earlier in the day. Melden observed blood stains all over the kitchen. Zamora, who had been shot in the chest, was next to the front door.
The parties stipulated to the admission of two July 2010 reports authored by Bradley Swanson of the Department of Justice. One of the reports read: "The relative positions of the blood stain pattern, the autopsy's findings as reported to us by LBPD, and the final location of the victim as reported to us by LBPD, suggests the victim was shot within just inside the kitchen at or near the oven. After being shot, the victim moved in the direction of the front door. The victim most likely lost consciousness due to a catastrophic drop in blood pressure dropping on the floor where he quickly bled to death."
On July 3, 2010, law enforcement discovered Zamora's missing Chevy Cavalier near defendant's mother's address in Salinas. Melden canvassed the locals, including R.B., and learned (1) Y.C. had originally brought the vehicle to the neighborhood; and (2) both Y.C. and defendant had been seen inside the vehicle. Eventually, defendant's mother arrived. She informed Melden that defendant lived with her. Melden obtained a search warrant for the residence. Officers found various parts of Zamora's vehicle, a broom bearing Zamora's full name, a sawed-off shotgun, and .22- and .25-caliber ammunition.
On July 8, 2010, defendant and Y.C. were taken into custody. At the police department, Melden advised defendant of his Miranda rights and conducted an interview. Defendant initially denied any involvement in Zamora's shooting but later admitted he "was present when the vehicle was taken." Melden also interviewed Y.C., Kathleen, and C.T.
Miranda v. Arizona (1966) 384 U.S. 436.
To distinguish between the witness and the municipality, we refer to the former as "Officer Salinas."
On July 8, 2010, at around 1:41 a.m., Officer Salinas of the Salinas Police Department encountered defendant near the front entrance of a motel. Officer Salinas called out, "Hey. I need to talk to you." Defendant "started running." Officer Salinas chased defendant until the latter went into a ditch and surrendered. Defendant said, "[I] only have a pipe on me." Officer Salinas conducted a patdown search and found over a gram of methamphetamine, a "small amount" of marijuana, and other drug paraphernalia. He advised defendant of his Miranda rights and asked him "what he was doing at the [m]otel" and "why he ran." Defendant stated he "was there to meet up with somebody by the name of '[Y.C.]'" and acknowledged he had been "on the run."
On November 16, 2010, C.T. pled guilty to transportation of cocaine and admitted he committed a qualifying "strike" offense and served two prior separate prison terms. In exchange for leniency, he agreed to testify.
Between July 9, 2010, and October 21, 2010, C.T. and defendant were housed in the same Monterey County jail pod. The two spoke "[f]our or five times a day." On one occasion, defendant told C.T. he was accompanied by Y.C. when he shot a man in Los Banos with a .22-caliber revolver. Defendant took the victim's car "back to his place" and hid the weapon. He mentioned the police "were investigating him for [the] murder" but "didn't have shit on him."
vii. Forensic evidence
Zamora's Chevy Cavalier was analyzed for DNA and fingerprints. A "mixture of DNA from at least three individuals consistent with one major contributor and two minor contributors" was extracted from the steering wheel. With respect to the two minor contributors, defendant "c[ould] be included" while Y.C. "was excluded." On the other hand, the major contributor's DNA profile needed to be uploaded to the Combined DNA Index System. The database identified D.G. as the donor. Testing of a cotton swab found in the car revealed "a low level mixture of DNA from at least three individuals." Defendant "could not be excluded as a contributor to that mixture." Two latent palmprints lifted from "outside of the driver's door window" belonged to Y.C. A latent fingerprint lifted from "the exterior of the right rear window" belonged to D.G.
b. Defense's case-in-chief
i. M.G.
M.G. testified Y.C. brought the blue Chevy Cavalier to her and defendant's mother's house in late June 2010, but she never saw her brother inside the car. In addition, defendant did not have any firearms at the time of the shooting.
In 2010, M.G. met Kathleen through defendant. The two women occasionally drank alcohol and smoked methamphetamine together. Following defendant's arrest, M.G. was told about Zamora's death by her mother and relayed this information to Kathleen. She denied rendezvousing with defendant and Kathleen at a Salinas motel, attempting to hide a firearm, and visiting an uncle.
On cross-examination, M.G. acknowledged she was once "caught for . . . petty theft" and identified herself as "D[.G.]" to an officer.
Both defendant and M.G. maintained D.G. is a cousin.
ii. Alfredo V.
Sometime in June 2010, during the day, Alfredo drove defendant and Y.C. to Zamora's apartment "to check" "if they could open" a "blue car" "with [a] key." There, Y.C. tried to unlock the vehicle but to no avail. She told Alfredo "her friend had not given her the correct key." After leaving the scene, defendant asked Alfredo for a ride to Salinas.
Later, at night, Alfredo drove defendant and Y.C. back to Zamora's apartment because Y.C. procured "the right key." After dropping her off, defendant instructed Alfredo to "put some gas in [his] car so that [they could] leave" for Salinas. He "didn't want [Y.C.] to take him because he could have some problems with his girlfriend." Alfredo complied and drove to a nearby gas station. A few minutes later, Y.C. pulled up in the blue car. Defendant exited Alfredo's vehicle and conversed with Y.C. Afterward, he told Alfredo, "I'm going to have to go with her. I have to go with her . . . so that there won't be any problems with her."
c. Jury instructions
The trial court issued the following instructions-among others-to the jury:
"[CALCRIM No. 520 (First or Second Degree Murder With Malice Aforethought):] .... The defendant is charged in Count 1 with murder, in violation of . . . Section 187.
"To prove the defendant is guilty of this crime, the People must prove that, No. 1, the defendant committed an act that caused the death of another person; and, 2, when the defendant acted, he had a state of mind call[ed] malice aforethought.
"There are two kinds of malice aforethought: express[] malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
"The defendant acted with express[] malice if he intended to kill. The defendant acted with implied malice if he intentionally committed an act; the natural and probable consequences of the act were dangerous to human life; at the time he acted, he knew his act was dangerous to human life; and, 4, he deliberately acted with conscious disregard for human life.
"Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes the death is committed. It does not require deliberation or the passage of any particular period of time.
"An act causes death if the death is a direct, natural and probable consequence of the act, and the death would not have happened without the act. [¶] 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 of the circumstances established by the evidence.
"If you decide the defendant committed murder, it is murder of the second degree unless the People have proved beyond a reasonable doubt it is murder of the first degree as defined in . . . another instruction I'll give you. [¶] . . . [¶]
"[CALCRIM No. 540A (Felony Murder: First Degree-Defendant Allegedly Committed Fatal Act)]: .... The defendant is charged in
Count 1 with murder under the theory of felony murder.
"To prove the defendant is guilty of first-degree murder under this theory, the People must prove that: The defendant committed the felonies of robbery and/or first-degree burglary; the defendant intended to commit the felonies of robbery and/or first-degree burglary; [and] while committing the felonies of robbery and/or first-degree burglary, the defendant caused the death of another person.
"A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent. To decide whether the defendant committed the felonies of robbery and first-degree burglary, please refer to the separate instructions that I will give you on those crimes. You must apply those instructions when you decide whether the People have proved first-degree murder under a felony-murder theory.
"The defendant must have intended to commit the felonies of robbery . . . and/or first-degree burglary before or at the time he caused the death.
"[CALCRIM No. 521 (First Degree Murder):] The defendant has been prosecuted for first-degree murder under two theories: 1, the murder was willful, deliberate and premeditated; and the murder was committed during the commission of a felony.
"Each theory of first-degree murder has different requirements, and I will instruct you on both. You may not find the defendant guilty of first-degree murder unless all of you agree that the People have proved the defendant committed murder, but all of you do not need to agree on the same theory.
"The defendant is guilty of first-degree murder if the People have proved that he acted willfully, deliberately and with premeditation. [¶] The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death.
"The length of time a person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of reflection, not the length of time.
"Again, a person acts willfully when he or she does it willingly or on purpose. A person deliberates . . . if he or she carefully weighs the considerations for and against his or her choice, and knowing the consequences, decides to act; and an act is done with premeditation if a decision to commit the act is made before the act is done.
"The defendant is guilty of first-degree murder if the People have proved the defendant murdered during the commission of a robbery or first-degree burglary, and I have previously instructed you on that theory of first-degree murder.
"The defendant is charged with felony murder on or about June 26th, 2010.
"The People have presented evidence of more than one act, namely, robbery or burglary[ t]o prove the defendant committed this offense[. Y]ou must not find the defendant guilty based on a felony-murder theory unless you all agree the People have proved the defendant committed at least one of these acts, namely, robbery or burglary, and you agree on which act he committed.
"The People have the burden of proving beyond a reasonable doubt that the killing was first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first-degree murder, and the murder is second-degree murder.
"[CALCRIM No. 700 (Special Circumstances: Introduction):] If you find the defendant guilty of first-degree murder, you must also decide whether the People have proved that one or more of the special circumstances is true. The People have the burden of proving each special circumstance beyond a reasonable doubt. [¶] If the People have not met this burden, you must find that the special circumstance has not been proved. You must return a verdict form stating true or not true for each special circumstance on which you all agree.
"In order for you to return a finding [that] a special circumstance is or is not true, all twelve of you must agree. You must consider each special circumstance separately. [¶] . . . [¶]
The trial court issued CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony) for the robbery-murder and burglary-murder special circumstances.
"[CALCRIM No. 3149 (Personally Used Firearm: Intentional Discharge Causing Injury or Death):] If you find the defendant guilty of the crime charged in Count 1, namely, murder, you must then decide whether the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that crime causing great bodily injury or death.
"To prove this allegation, the People must prove that, No. 1, the defendant personally discharged a firearm during the commission of that crime; and, 2, the defendant intended to discharge the firearm; and, 3, the defendant's act caused great bodily injury to or the death of a person.
"A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.
"Great bodily injury means significant or substantial injury. It is an injury that is greater than minor or moderate harm.
"An act causes great bodily injury or death if the injury or death is the direct, natural and probable consequence of the act, and the injury or death would not have happened without the act. 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 of the circumstances established by the evidence.
"The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find the allegation has not been proved."
No instructions were given on aiding and abetting, second degree felony murder, murder under the natural and probable consequences doctrine, or any other theory of murder imputing malice to an accused based solely on his or her participation in a crime.
d. Verdict
The jury found defendant guilty of the lesser included offense of second degree murder on count 1, deadlocked on counts 2 through 4 as well as the felony-murder special-circumstance allegations, and found not true the firearm discharge and prior prison term allegations. The trial court struck the felony-murder special-circumstance allegations on its own motion and granted the prosecution's motion to dismiss counts 2 through 4. Defendant was sentenced to 15 years to life.
II. Case No. F084682
On December 28, 2021, defendant filed a petition for resentencing pursuant to former section 1170.95, which has since been renumbered section 1172.6. (See Stats. 2022, ch. 58, § 10.) He marked the following checkboxes:
"1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of 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, or attempted murder under the natural and probable consequences doctrine. [Citation.]
"2. I was convicted of murder, attempted murder, or manslaughter following a trial or I accepted a plea offer in lieu of a trial at which I could have been convicted of murder or attempted murder. [Citation.]
"3. I could not presently be convicted of murder or attempted murder because of changes made to . . . §§ 188 and 189, effective January 1, 2019. [Citation.]"
The People filed responses opposing the petition. At a July 21, 2022 hearing, the trial court pronounced:
"Okay. Court having read the arguments of counsel and read the moving papers and responding papers of counsel, as well as the arguments finds that there is not a prima facie case made, even though the Court recognizes [the] relatively, if not extremely low bar, given the facts of the case, the Court finds there is not a prima facie case made."
Defendant appealed. He contended the trial court "failed to make a sufficient statement of reason[s] for the denial of the petition." This court reversed the July 21, 2022 order, finding the trial court "provided a scant pronouncement that did not 'fully set[] forth its reasons' for the determination. [Citation.]" (People v. Gallegos (June 20, 2023, F084682) [nonpub. opn.], italics omitted.) The matter was remanded" 'for the purpose of allowing the trial court to correct the defect' [citation] by providing a statement fully setting forth its reasons for declining to make an order to show cause." (Ibid.) Remittitur issued August 21, 2023.
III. Present case
On remand, the parties submitted additional briefing. At a January 10, 2024 hearing, the trial court pronounced:
"The reason that I denied it is that, number one, I presided over the jury trial in this matter. I heard all the testimony, I weighed it. The fact that the jury did not find the gun enhancement to be true, had it been a court trial I would have found it to be true. I found that the evidence of all the witnesses pointed to Mr. Gallegos as the actual killer. There were several admissions by Mr. Gallegos that were presented to the Court by various witnesses, that he was, in fact, the actual killer, that he confessed as much to several of the people he was associating with. That's the reason I denied it. Notwithstanding the jury's inconsistent verdicts, the Court found that he was the actual killer. And hopefully that's a sufficient statement of reasons.
"Like I say, notwithstanding the jury's finding, the Court believes beyond a reasonable doubt that Mr. Gallegos was, in fact, the actual killer. There were several witnesses who testified to that, and surprisingly they were all very consistent and it was all consistent with the evidence that Mr. Gallegos was, in fact, the actual killer. Therefore, the prima facie case has not been made. That will be the Court's order."
DISCUSSION
"Senate Bill No. 1437 [(2017-2018 Reg. Sess.)] amended the felony-murder rule and murder under the natural and probable consequences doctrine 'to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (People v. Watson (2021) 64 Cal.App.5th 474, 481-482, overruled in part on other grounds by People v. Arellano (2024) 16 Cal.5th 457, 474; see People v. Langi (2022) 73 Cal.App.5th 972, 978 [Sen. Bill No. 1437 "transformed the law of accomplice liability for murder"].) "Senate Bill No. 1437 also added [former] section 1170.95, which allows a defendant convicted of felony murder to file a petition with the sentencing court to have the murder conviction vacated and to be resentenced." (People v. Watson, supra, at p. 482.) Later, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.), which "expanded the scope of [Senate Bill No. 1437's] changes to encompass, among other things, murder convictions '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.'" (People v. Langi, supra, at p. 978, italics omitted, quoting former § 1170.95, subd. (a), as amended by Stats. 2021, ch. 551, § 2.) As mentioned, former section 1170.95 is now section 1172.6. (Stats. 2022, ch. 58, § 10.)
A petitioner is entitled to relief under section 1172.6 if three conditions are satisfied. First, the prosecution "proceed[ed] under a theory of 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 ...." (§ 1172.6, subd. (a)(1).) Second, "[t]he petitioner was convicted of murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder ...." (Id., subd. (a)(2).) Third, "[t]he petitioner could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019." (Id., subd. (a)(3).)
"Except 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), as amended by Stats. 2018, ch. 1015, § 2.)
"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." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 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).) "[T]he prima facie inquiry under [section 1172.6,] subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved...."' [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) "[A]t the prima facie stage, the court is prohibited from engaging in' "factfinding involving the weighing of evidence or the exercise of discretion." '" (People v. Flores (2022) 76 Cal.App.5th 974, 991 (Flores), quoting Lewis, supra, at p. 972.) "Only where the record of conviction contains facts conclusively refuting the allegations in the petition may the court make credibility determinations adverse to the petitioner." (Flores, supra, at p. 991, italics omitted, citing Lewis, supra, at p. 971; see People v. Harden (2022) 81 Cal.App.5th 45, 52-56 [record of conviction includes jury instructions and verdicts].)
"If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).) "At the prima facie stage, the court may deny a petition if the petitioner is ineligible for resentencing as a matter of law." (Flores, supra, 76 Cal.App.5th at p. 987, citing Lewis, supra, 11 Cal.5th at p. 966.) "[A] petitioner convicted of murder is ineligible for resentencing if the record establishes, as a matter of law, that (1) the complaint, information, or indictment did not allow the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory of imputed malice; (2) the petitioner was not convicted under such theory; or (3) the petitioner could presently be convicted of murder or attempted murder under the law as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.)." (People v. Flores, supra, at p. 987.)
II. Analysis
At the outset, defendant contends the trial court "engaged in inappropriate factfinding at the prima facie stage": specifically, the court "erred by relying on its own memory and en[g]aging in factfinding." (Boldface &capitalization omitted.) The Attorney General "does not dispute that on remand the trial court engaged in factfinding and weighing of the evidence" but asserts defendant "is not entitled to relief because he was not prejudiced by the error." "To demonstrate prejudice from the denial of a section [1172.6] petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing." (Flores, supra, 76 Cal.App.5th at p. 986.)
Here, the record of conviction demonstrates defendant alone was charged with first degree murder on count 1. The jury received instructions on first degree felony murder, first degree premeditated murder, felony-murder special circumstances, and second degree murder. It "was not instructed on aiding and abetting or any other vicarious liability theories." (People v. Harden, supra, 81 Cal.App.5th at p. 57.) The verdict forms confirm the jury expressly found defendant not guilty of first degree premeditated murder but guilty of the lesser included offense of second degree murder, which foreclosed a first degree felony murder conviction and any felony-murder special circumstance findings. (See § 190.2, subd. (a) [special circumstances apply to a defendant convicted of first degree murder].)
" 'Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements-i.e., willfulness, premeditation, and deliberation-that would support a conviction of first degree murder.' [Citations.] 'Malice may be either express or implied.' [Citation.] It is express 'when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.] It is implied 'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his [or her] conduct endangers the life of another and who acts with conscious disregard for life.' [Citation.]" (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358.) For instance, "where the defendant obtains a lethal weapon and then engages the victim in an argument, malice may be implied-from the circumstances leading to the killing-to support a conviction of second degree murder." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 109-110; see People v. Benson (1989) 210 Cal.App.3d 1223, 1227-1231 [finding of implied malice proper where the accused entered the victim's bedroom while brandishing a loaded pistol and said pistol discharged during an argument].) Given the jury found not true the allegation defendant intentionally and personally discharged a firearm and proximately caused Zamora's death, it necessarily convicted him of second degree murder based upon a theory of implied malice. Because defendant was "convicted of second degree murder on a theory that survives Senate Bill No. 1437's changes to sections 188 and 189" (People v. Daniel (2020) 57 Cal.App.5th 666, 677), he is ineligible for resentencing relief as a matter of law (ibid.).
Defendant counters "the record does not support a denial at the prima facie stage." (Boldface &capitalization omitted.) He claims: (1) "the jury instructions permitted jurors to find [him] guilty of murder based on second-degree felony murder principles"; and (2) "the record does not support a finding that [he] was the actual killer" (boldface &capitalization omitted). We reject both points.
Regarding the first contention, the jury was given CALCRIM No. 520, which explicitly instructs a conviction of murder requires proof a defendant committed "an act that caused the death of another person" with "malice aforethought" and such a murder is "of the second degree unless the People have proved beyond a reasonable doubt it is murder of the first degree as defined in" other instructions. Those instructions- CALCRIM Nos. 521 and 540A-respectively detail two theories of first degree murder: (1) "willful, deliberate and premeditated" murder; and (2) murder during the commission of a felony enumerated in section 189 (e.g., robbery, burglary). None of the instructions given afforded the jury the opportunity to consider second degree felony murder. (See People v. Chun (2009) 45 Cal.4th 1172, 1182 ["Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 ....' "]; see also In re White (2019) 34 Cal.App.5th 933, 937, fn. 2 ["[E]ffective January 1, 2019, the second degree felony-murder rule in California is eliminated."].) "Jurors are presumed to understand and follow the court's instructions." (People v. Holt (1997) 15 Cal.4th 619, 662.)
As for the second contention, it presupposes defendant was "found liable for murder under section 189, subdivision (e) without proof of malice." Under that provision, a participant in the perpetration of a qualifying felony (e.g., robbery, burglary) in which a death occurs is culpable for murder if he was "the actual killer." (§ 189, subd. (e)(1); see ante, fn. 11.) "[T]he term 'actual killer' as used in the revised felony-murder rule of section 189, subdivision (e)(1) refers to someone who personally killed the victim and is not necessarily the same as a person who 'caused' the victim's death." (People v. Lopez (2022) 78 Cal.App.5th 1, 4.) To reiterate, however, the jury instructions and verdict establish defendant was convicted of second degree implied malice murder, not murder under a theory imputing malice based on his participation in a robbery or burglary. (Cf. id. at p. 10 [jury convicted the defendant of first degree murder and found true the robbery-murder special circumstance].) This obviates any need to decide whether defendant was an "actual killer" within the meaning of section 189, subdivision (e)(1).
Finally, defendant argues "the jury's 'not true' finding on the section 12022.53(d) enhancement precludes a finding that [he] was the actual killer." (Boldface &capitalization omitted.) As noted, the question of whether defendant was an "actual killer" pursuant to section 189, subdivision (e)(1) is extraneous because he was convicted of second degree implied malice murder. To the extent defendant suggests the absence of an affirmative finding of personal and intentional firearm discharge causing death contradicts or collaterally estops a second degree implied malice murder conviction, we disagree. Under section 12022.53, subdivision (d), an additional 25 years to life is imposed on a defendant who-in the commission of a murder-"personally and intentionally discharges a firearm and proximately causes . . . death . . . to a person other than an accomplice ...." This provision "requires only an intent to discharge a firearm, not subjective awareness of a risk or disregard for life." (In re Ferrell (2023) 14 Cal.5th 593, 604.) On the other hand, "implied-malice murder has a physical component: an act whose natural consequences are dangerous to life. And it has a mental component: defendant's deliberate performance of the act with conscious disregard for life, knowing the act endangers another's life." (Ibid.) Even if an accused did not personally and intentionally fire the shot that caused the victim's death, a second degree malice murder conviction could still be merited if the killing was the result of the accused's other intentional acts whose natural consequences are dangerous to life, e.g., bringing a loaded gun to the victim's locale and instigating an altercation with said victim that sets in motion the inadvertent gunshot (see People v. Nieto Benitez, supra, 4 Cal.4th at pp. 9899, 109-110; People v. Benson, supra, 210 Cal.App.3d at pp. 1227, 1228-1231).
We might have reached a different conclusion had the jury instead found not true an allegation defendant "personally use[d] a firearm ...." (§ 12022.53, subd. (b), italics added; cf. People v. Arnold (2023) 93 Cal.App.5th 376, 385-386 [trial court's finding the defendant murdered the victim by stabbing him contradicted jury's earlier finding the defendant did not personally use a knife], People v. Arnold, at pp. 386-387 [collateral estoppel barred trial court from reconsidering whether the prosecution proved beyond a reasonable doubt the defendant intentionally stabbed the victim].)
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: SNAUFFER, J., DE SANTOS, J.