Opinion
B318906
01-17-2024
THE PEOPLE, Plaintiff and Respondent, v. MOISES LOPEZ, Defendant and Appellant.
Joanna McKim, 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, Charles S. Lee and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA325647-01 William N. Sterling, Judge. Affirmed.
Joanna McKim, 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, Charles S. Lee and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
Moises Lopez appeals from the superior court's order denying his petition for resentencing under Penal Code section 1172.6. Lopez contends he is entitled to remand for issuance of an order to show cause and an evidentiary hearing in accordance with section 1172.6, subdivisions (c) and (d). Because the record of conviction conclusively establishes Lopez is ineligible for resentencing as a matter of law, we affirm.
References to statutes are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
FACTS AND PROCEDURAL BACKGROUND
In his brief on appeal, Lopez states he "incorporates here the statement of facts set forth in the Court of Appeal's opinion, affirming the judgment." Accordingly, we also take our summary of the underlying facts from our unpublished opinion in People v. Ruiz and Lopez (Nov. 23, 2010, B214515) [nonpub. opn.] (Lopez I) as well as from the testimony at Lopez's trial. We previously granted Lopez's motion to augment the record on appeal, incorporating by reference the record in Lopez I.
1. The shooting of Freddy Castro and Frank Mariscal
On the afternoon of June 18, 2007, Armando Barragan was driving home from work. As he drove down Morgan Avenue, he saw a blue sedan. People inside the sedan were talking to a couple of people on the sidewalk. The sedan was double parked and Barragan had to go around it. As soon as he did he "heard some pops." At first he thought they were "firecrackers." Barragan looked in his rearview mirror, and then over his right shoulder, and saw "one guy in the blue sedan" with his hand out the window, shooting a gun. He "realized . . . that he was shooting at these other two individuals that [were] standing on the sidewalk." Barragan could see "the smoke from the gun."
The blue sedan passed Barragan and he followed it, memorizing the license plate. He gave the license plate number to a neighbor from the house next door. At trial, Barragan confirmed a car in photographs the prosecutor showed him was the car he'd seen that afternoon. Authorities later identified the car as a 1995 Buick Regal four-door with a license plate of 4KPZ523. The registered owner of the car was Lopez's father, Jose.
The two people standing on the sidewalk turned out to be Freddy Castro and Frank Mariscal. (Lopez I.) Castro died of multiple gunshot wounds. Mariscal was shot five times but survived. He told detectives someone in the car had said," 'What's 38th Street life like?'" Mariscal also identified the Buick in photographs the detectives showed him. He was "very positive, very adamant about his identification" of the car.
Mariscal later refused to comply with a trial subpoena and was arrested on a body attachment. At a material witness hearing, Detective Johnny Villa testified Mariscal had told him he was afraid to come to court and "he didn't want to have anything to do with this anymore." The court found Mariscal to be a material witness and set bail pending his testimony.
Before the jury, Mariscal claimed not to remember anything and he denied making statements to the police. Detectives testified that, at the material witness hearing, Mariscal's wife told them Mariscal was scared and "wasn't going to testify against the shooter."
After police arrested Lopez, detectives interrogated him. The recorded interview was played for the jurors at trial. Lopez told the detectives, "I ain't trying to snitch somebody out." Lopez said "some other fools" were arguing about who was going to go "looking around for fools looking to catch fools." Lopez "just went down there" with "Snaps and some other fool Straps." He said, "[W]e just hopped in the car and we just went over there."
When asked whose hangout is 40th and Morgan, Lopez replied, "38." Lopez said he was driving the blue Buick, Straps was in the front passenger seat, and Snaps was in the back seat. Lopez claimed not to know Snaps's real name even though he'd known him since junior high. Lopez told the detectives, "We spent around [sic] and them fools was throwing gang signs." Two guys were on the sidewalk. "And then Snaps in the backseat said, hey, what's that 38th Street life." "[T]he car was rolling slow."
The detectives asked Lopez who "started blasting" and "busting," apparently referring to firing a weapon. Lopez answered, "The one in the back"-referring to Snaps-and then Straps as well. When asked if "anybody had been hit" or he'd seen "anybody go down," Lopez replied, "I didn't seen it." Although difficult to understand, Lopez seemed to say he then drove south. "The homie Straps" parked the car.
The detectives told Lopez they knew Snaps was in the backseat. But they accused him of lying about the front seat passenger: "Bandit's prints" were "all over" the car, they said.When one of the detectives told Lopez, "I know Bandit is like your brother. You guys are tight," Lopez replied, "Yeah."
According to the gang expert, "Bandit" was Esteban Ruiz.
A gang expert testified members of the Florencia 13 gang and the 38th Street gang "do not get along at all"; they "pretty much hate each other." Lopez was a member of Florencia 13. The shooting of Castro and Mariscal took place in 38th Street's neighborhood.
2. The charges, trial, verdicts, and sentence
The People charged Lopez and Ruiz with the murder of Castro and the willful, deliberate, and premeditated attempted murder of Mariscal. The People alleged that, in the commission of those crimes, a principal personally used and personally and intentionally discharged a firearm, causing death and great bodily injury to the victims. The People also alleged Lopez and Ruiz committed the offenses for the benefit of, at the direction of, and in association with a gang.
In addition, the People charged Ruiz with the murder of Pablo Hernandez on an earlier date.
Lopez and Ruiz were tried together. Lopez testified on his own behalf. He told the jury Snaps and Straps came over to his house on June 18, 2007. They said," 'Let's go look for some action.'" Lopez took this to mean "[m]aybe go write with spray cans or something," or "[l]ook for some girls." Snaps and Straps were newer Florencia 13 members who used to "tag."
The three got into Lopez's father's car. Straps sat in the front passenger seat and Snaps sat in the back seat. Lopez drove to 40th and Morgan. Lopez had seen Straps and Snaps with guns before but he didn't know if they had a gun that night. Lopez said there was no discussion of going to shoot someone, and that's not something he would do.
As Lopez drove down Morgan, Straps told him to stop. Straps "started yelling out" and "screaming out." Lopez thought Straps "knew somebody" so he stopped. Lopez continued, "[T]hey was just arguing with each other and they started shooting." Lopez "took off."
Lopez testified he "started yelling at them what are they doing." He said he "was shocked what they was doing [sic]." When his counsel asked him if he knew "these guys were going to shoot those guys," Lopez answered, "No."
Lopez acknowledged he'd told the police "something very different." Lopez said when detectives interviewed him, he started to tell them "what [he was] telling [the jury] today." But Villa said he was lying and telling "pretty funny stories." So, Lopez continued, he "started just making things up." He changed his story because Villa "wanted [him] to."
On January 29, 2009, the jury found Lopez guilty of the first degree murder of Castro and the attempted murder of Mariscal. The jury found true the allegation that the attempted murder was committed willfully, deliberately, and with premeditation. The jury also found the firearm and gang allegations true. The trial court sentenced Lopez to prison for life with the possibility of parole, plus 75 years to life. Another panel of this court affirmed Lopez's conviction. (Lopez I.)
The jury convicted Ruiz on all counts as well.
3. Lopez's writ petitions and petition for resentencing
Following the affirmance of his conviction, Lopez filed a series of pleadings. On March 16, 2012, he filed a petition for a writ of habeas corpus contending his trial counsel and appellate counsel were constitutionally ineffective. Lopez declared he had "abus[ed] powerful drugs such as PCP, methamphetamine, [and] marijuana" "[t]hroughout" his "childhood and adulthood." The prosecutor filed an informal response, summarizing the evidence at trial and attaching Lopez I, transcripts of detectives' interview of Lopez and of his trial testimony, and a declaration from Lopez's privately retained trial counsel. The superior courtdenied the writ petition because Lopez had "failed to establish a prima facie showing that his counsel failed to provide effective representation."
When Lopez was tried in 2009, the trial judge-the Honorable George G. Lomeli-was in Department 119. By the time Lopez filed his first habeas petition in 2012, the Honorable William N. Sterling had been assigned to Department 119.
On June 1, 2018, Lopez filed another writ petition. The handwriting is somewhat illegible, but it appears Lopez contended he was entitled to a Franklin hearing. Lopez also asserted the trial court erred in its jury instructions on aiding and abetting, citing People v. Chiu (2014) 59 Cal.4th 155 and "SB-1437." The writs center forwarded the petition to Judge Sterling in Department 119. The record doesn't reflect what happened to that writ petition. A handwritten pleading by Lopez dated October 30, 2018 and addressed to Judge Sterling seems to say the court denied his petition on June 27, 2018.
People v. Franklin (2016) 63 Cal.4th 261. Lopez was 20 years old when he committed the crimes.
As discussed below, Senate Bill No. 1437 took effect on January 1, 2019.
On November 5, 2018, Lopez filed the same (or a substantially similar) writ petition. On January 8, 2019, Judge Sterling granted the prosecutor's request to file an informal response.
On April 2, 2019, Lopez filed a form petition for resentencing under section 1172.6. Lopez checked boxes stating the information had "allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine," he'd been convicted of "1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine," and he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189." Lopez also checked box 5 and all of its subparts, stating he "could not now be convicted" under those changes in the Penal Code because he was "not the actual killer," he "did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree," and he was "not a major participant in the felony or [he] did not act wth reckless indifference to human life during the course of the crime or felony." Lopez also checked the box asking the court to appoint counsel for him.
The petition apparently was assigned to Department 119. On April 25, 2019, the prosecution filed a response to Lopez's petition for resentencing. The prosecution asserted Lopez had failed to make a prima facie case of eligibility because his jury had not been instructed on felony murder or the natural and probable consequences doctrine. Quoting from Lopez I, the prosecution also argued Lopez's jury, in convicting him of the first degree murder of Castro," 'had to find that'" he" 'personally acted willfully, deliberately, and with premeditation.' "
On April 30, 2019, the prosecution filed a return to Lopez's habeas petition.
The deputy district attorney who had represented the People at Lopez's 2009 trial filed the response to his resentencing petition. A different deputy district attorney filed the return to Lopez's habeas petition.
The court appointed counsel for Lopez on his resentencing petition. Counsel appeared before the court on June 21, 2019. The court stated it appeared Lopez was not entitled to relief because the jury had not been instructed on either felony murder or the natural and probable consequences doctrine. Rather, the court continued, the jury was "instructed on straight aiding and abetting which requires a specific intent." The court nevertheless told counsel he could "review the record" for "any discrepancy."
The court asked the clerk to contact the court of appeal for the reporter's transcripts of the trial. The court ordered Lopez out from prison and asked counsel to "write him a letter, let him know what we're doing, that you are representing him, . . . and the court is looking at whether he qualifies for 117[2.6] as well as the issue of [a] Franklin hearing."
On October 16, 2019, Lopez appeared with counsel before Judge Sterling. The court stated Lopez was entitled to a Franklin hearing, and it asked the clerk to contact the bar panel for counsel. As for the resentencing petition, the court said, "We did discuss the case at the bench. And it appears to me that the defendant doesn't have the right to have his petition granted.... [I]t's just clear, the jury wasn't instructed on felony murder. The jury wasn't instructed on natural and probable consequences. And the evidence clearly established that he aided and abetted with full knowledge of the criminal intent of the perpetrator. So it's a standard aiding and abetting situation under which he's not entitled to relief. [¶] The statute when it was passed didn't entitle everyone who's been convicted of murder as an aider and abettor relief. It was very specific. And the only people who are entitled are people who were convicted under a theory of natural and probable consequences, aiding and abetting or felony murder, neither of which [was] the basis of this conviction."
Lopez finally got his Franklin hearing on May 13, 2022.
The court asked Lopez's counsel if he would like to argue. Counsel replied, "No. I'll submit, Your Honor." The court then denied Lopez's petition for resentencing.
Lopez did not appeal from the October 2019 denial of his section 1172.6 petition. Nearly two years later, on August 16, 2021, Lopez filed a fourth petition for a writ of habeas corpus. Lopez referred to a number of statutes and cases. He asked that "all enhancements be dismiss[ed]." At one point, Lopez noted the superior court had denied his petition for resentencing "without first issuing an order to show cause and holding an evidentiary hearing." On August 27, 2021, the court summarily denied Lopez's writ petition. The court stated, "[T]his court previously denied petitioner's 117[2.6] petition." The court referred to the October 16, 2019 proceeding and noted Lopez was present and represented by counsel. Lopez did not file a notice of appeal from the August 27, 2021 order.
There apparently were some further proceedings in Department 119 on another resentencing petition Lopez may have filed as well as on the Franklin hearing issue. According to the record in an earlier appeal, B307084, Lopez appeared in Department 119 on August 11, 2020 before the Honorable Craig Richman. Two attorneys appeared with Lopez, one who represented him on the Franklin hearing issue (Richard Pagliari) and one who represented him on an 1172.6 petition (Dale Atherton). A minute order attached to the notice of appeal in that appeal reflects the court continued the Franklin hearing matter to January 14, 2021 for setting, and the section 1172.6 matter to January 24, 2021 for "petition review." Atherton filed a notice of appeal from the August 11, 2020 "order." On September 28, 2020, the Administrative Presiding Justice of this court dismissed that appeal, stating, "The order entered on August 11, 2020, is not an appealable order."
By August of 2021, the Honorable David R. Fields had been assigned to Department 119.
On March 8, 2022, Lopez, represented by the California Appellate Project, filed an application for relief from default. We granted that application on March 30, 2022.
DISCUSSION
1. Section 1172.6
Senate Bill No. 1437 (Senate Bill 1437) took effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 981, 984; People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the former felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The Legislature then passed Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate Bill 775) to expand relief to people convicted of (as relevant here)" 'attempted murder under the natural and probable consequences doctrine.'" (People v. Coley (2022) 77 Cal.App.5th 539, 544 (Coley).) Senate Bill 775 took effect January 1, 2022. (Ibid.) The bill also extended eligibility to individuals "convicted of murder under any 'theory under which malice is imputed to a person based solely on that person's participation in a crime.'" (Ibid.; § 188, subd. (a)(3).)
Section 188, subdivision (a)(3) now requires proof of malice to convict a principal of murder, except under the revised felonymurder rule in section 189, subdivision (e). That provision requires the People to prove the defendant was the actual killer (§ 189, subd. (e)(1)); the defendant, though not the actual killer, with the intent to kill assisted in the commission of the murder (§ 189, subd. (e)(2)); or the defendant was a major participant in a felony listed in section 189, subdivision (a), and acted with reckless indifference to human life "as described in subdivision (d) of section 190.2," the felony-murder special circumstance provision. (§ 189, subd. (e)(3); see Strong, supra, 13 Cal.5th at p. 708; Gentile, supra, 10 Cal.5th at pp. 842-843.)
Individuals convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to vacate the conviction and be resentenced. (§ 1172.6, subd. (a).) If the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold an evidentiary hearing. (Id., subds. (c), (d)(1).) At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder and (in this case) attempted murder under the amended law. (Id., subd. (d)(3).)
In deciding whether a petitioner has made a prima facie showing for relief under section 1172.6, 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 factual allegations were proved. If so, the court must issue an order to show cause. (Lewis, supra, 11 Cal.5th at p. 971.) The court may consider the record of conviction, which will "necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Ibid.; see People v. Williams (2022) 86 Cal.App.5th 1244, 1251 (Williams).) "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.'" (Lewis, at p. 972; see People v. Eynon (2021) 68 Cal.App.5th 967, 975.)
"Nevertheless, the court may appropriately deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law." (People v. Harden (2022) 81 Cal.App.5th 45, 52.) If the record-including the court's own documents- contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner, thereby deeming the petitioner ineligible. (Ibid.; see Lewis, supra, 11 Cal.5th at p. 971.) We review de novo a trial court's prima facie determination that a petitioner is ineligible for section 1172.6 relief as a matter of law. (Williams, supra, 86 Cal.App.5th at p. 1251.)
2. The record of conviction demonstrates Lopez is ineligible for relief as a matter of law
The Attorney General implicitly concedes the superior court, in its October 2019 order denying Lopez's petition, engaged in factfinding. The court stated, "[T]he evidence clearly established that [Lopez] aided and abetted with full knowledge of the criminal intent of the perpetrator." The Attorney General contends, however, that the record of conviction-including the jury instructions-"shows that the jury convicted [Lopez] of the still valid murder theory of aiding and abetting the killer with the requisite intent."
It is well settled that direct aiding and abetting remains a valid basis for murder and attempted murder liability, because a direct aider and abettor of those crimes must possess malice aforethought. (See Gentile, supra, 10 Cal.5th at p. 848; Coley, supra, 77 Cal.App.5th at p. 546; People v. Cortes (2022) 75 Cal.App.5th 198, 204-205 (Cortes) [petitioner convicted of murder and attempted murder either as perpetrator or direct aider and abettor ineligible for section 1172.6 relief]; People v. Offley (2020) 48 Cal.App.5th 588, 595-596.) "A direct aider and abettor's 'guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.'" (Williams, supra, 86 Cal.App.5th at p. 1252; People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
Lopez concedes his jury was not instructed on felony murder or the natural and probable consequences doctrine. He contends, however, that there's a "chance" the jury found him "guilty of first-degree murder by imputing to him the mental state of the actual killer, Ruiz." We disagree.
Lopez relies on People v. Langi (2022) 73 Cal.App.5th 972 (Langi). That reliance is misplaced. In Langi, the jury convicted the defendant of second degree murder based on his participation in a fistfight among several people in which the victim was punched in the face, fell, and hit the back of his head on the sidewalk or curb, resulting in the victim's death. (Id. at pp. 975977.) On appeal from the summary denial of Langi's section 1172.6 petition, the appellate court determined the instruction on aiding and abetting (CALJIC No. 3.01) created an ambiguity in the context of second degree implied malice murder that may allow the jury to "find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice." (Langi, at p. 982.) The court explained, "The aiding-and-abetting instruction stated that a person aids and abets a crime if he or she acts 'with knowledge of the unlawful purpose of the perpetrator, and . . . with the intent or purpose of committing or encouraging or facilitating the commission of the crime.' (CALJIC No. 3.01, italics added.) However, . . . the second degree murder instruction specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death.... If the perpetrator need not have had 'murderous intent,' certainly the aider and abettor need not have had such an intent. Although the definition of second degree murder in CALJIC No. 8.31 states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in CALJIC No. 3.01 does not include the same requirement." (Id. at pp. 982-983.) In this situation, the court said, the ambiguity in the instructions allows an aider and abettor to be found guilty simply for intending to aid the perpetrator's act, without personally and consciously disregarding the danger to human life. (Id. at p. 983.)
Langi is inapposite because Lopez was not convicted of second degree or implied malice murder. Instead, the jury convicted him of willful, deliberate, premeditated attempted murder as well as first degree murder. In contrast to second degree implied malice murder, the perpetrator of an attempted murder must have the specific intent unlawfully to kill another human being. (People v. Covarrubias (2016) 1 Cal.5th 838, 890 [attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing].) Coley, supra, 77 Cal.App.5th 539, is instructive.
The facts in Coley were similar to the facts here. Coley drove a car from which his codefendant fired shots at two men walking along the highway. One victim died but the other avoided being shot by jumping over a guardrail. The jury convicted Coley of second degree murder and attempted murder without premeditation. The court did not instruct the jury on felony murder or murder under a natural and probable consequences theory. (Coley, supra, 77 Cal.App.5th at p. 542.)
The trial court denied Coley's resentencing petition, concluding "the record of conviction showed the jury had found express malice, i.e., a specific intent to unlawfully kill, when it convicted appellant of attempted murder." (Coley, supra, 77 Cal.App.5th at pp. 544-545.) Langi, by contrast, involved implied malice. (Coley, at p. 547.) The Coley court had given the jury CALCRIM No. 600, instructing them that "attempted murder requires a determination that 'the defendants intended to kill that person.'" (Coley, at p. 547.) Because the jury convicted Coley of aiding and abetting "the same shooting that gave rise to the attempted murder conviction," it "necessarily found he had personally harbored intent to kill or express malice when he aided and abetted the second degree murder." (Ibid.) The result here is the same: because the jury convicted Lopez of aiding and abetting the same shooting that gave rise to the attempted murder conviction, it necessarily found he had personally harbored intent to kill or express malice when he aided and abetted the murder.
Lopez doesn't address Coley. Instead, he cites People v. Whitson (2022) 79 Cal.App.5th 22 (Whitson), arguing CALJIC No. 8.67 permitted the jury to convict him on a theory of imputed malice. We are not persuaded.
A jury convicted Whitson of first degree murder, three counts of willful, premeditated, and deliberate attempted murder, and conspiracy to murder in a drive-by shooting case. (Whitson, supra, 79 Cal.App.5th at pp. 25, 27.) The trial court instructed the jury on the natural and probable consequences doctrine on all five counts. (Id. at p. 29.) On appeal from a summary denial of Whitson's petition for resentencing, our colleagues in Division Five affirmed the order on the conspiracy count but reversed and remanded the matter on the murder and attempted murder counts. (Id. at p. 30.)
Most of the Whitson opinion is devoted to the conspiracy to murder issue. In a brief single paragraph entitled, "Attempted Murder Convictions," the court noted the parties agreed "that the matter must be reversed and remanded with respect to the attempted murder convictions as well [as the murder conviction]." (Whitson, supra, 79 Cal.App.5th at p. 33.) The court quoted part of CALJIC No. 8.67:" 'To constitute willful, deliberate, and premeditated attempt to commit murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being.'" (Whitson, at p. 33.) The court stated, "Based on this language, and in particular the possibility that the jury considered [the shooter], and not Whitson [the driver][,] to be the would-be slayer, we cannot conclude as a matter of law that the jury found Whitson himself harbored the intent to kill." (Ibid.)
The Whitson court did not analyze this issue in any detail. Instead, it essentially accepted a stipulation between the parties -a concession by the Attorney General to Whitson's contention- that it was appropriate to remand the attempted murder counts for further consideration. The Attorney General has made no such concession here.
About three months before it decided Whitson, Division Five issued Cortes, supra, 75 Cal.App.5th 198. In Cortes, as here, the jury convicted the defendant of one count of first degree murder and one count of premeditated attempted murder. (Id. at pp. 199-200.) The trial court had instructed the jury with- among other instructions-CALJIC Nos. 8.66 and 8.67. The court did not instruct the jury on the natural and probable consequences doctrine. (Cortes, at p. 200.) Cortes petitioned for resentencing, contending the jury instructions on aiding and abetting allowed the jury "to 'impute' malice to him without making a finding that Cortes personally harbored malice." (Id. at p. 202.) The trial court summarily denied Cortes's petition, finding he had "failed to make a prima facie showing of entitlement to relief" and the appellate court affirmed. (Id. at p. 200.) The court stated, "[T]he jury was not instructed on any theory of liability for murder or attempted murder that required that malice be imputed to him." (Id. at pp. 205-206 [nothing in the instructions "permitted the jury to find Cortes guilty on a theory other than direct aiding and abetting or liability as a perpetrator of murder and attempted murder"].)
In any event, in arguing the "would-be slayer" language in CALJIC No. 8.67 could have caused his jury to impute Ruiz's malice to him, Lopez ignores the preamble to the instruction. It requires the jury to find the defendant guilty of attempted murder before considering the truth of the allegation "that the crime attempted was willful, deliberate, and premeditated murder." (CALJIC No. 8.67.) Thus the jury already had determined Lopez shared Ruiz's intent to kill and was guilty as an aider and abettor of attempted murder when it considered whether the crime was willful, deliberate, and premeditated. CALJIC No. 8.67 does not concern the requisite intent or mental state for conviction of attempted murder. And assuming-as we must-that Lopez's jury understood and followed the instructions given, it had no bearing on the jury's underlying determination of Lopez's guilt on the attempted murder charges. (See People v. Buenrostro (2018) 6 Cal.5th 367, 431 [we presume jurors understand and follow the instructions they are given, including the written instructions].)
Finally, even assuming the instruction did not require the jury to find Lopez personally premeditated the crime in order to find the allegation true, our conclusion about Lopez's ineligibility for section 1172.6 relief would not change. Section 1172.6 relief is available only to a defendant convicted under a theory of imputed malice, not imputed premeditation. (§ 1172.6, subd. (a); see People v. Smith (2005) 37 Cal.4th 733, 739-740 [attempted murder requires specific intent to kill, and the prosecution may seek an additional finding of premeditation "for purposes of sentence enhancement"].) According to the instructions given in this case, in order to convict Lopez of attempted murder as an aider and abettor, the jury was required to find he shared Ruiz's specific intent to kill. (See People v. Nguyen (2015) 61 Cal.4th 1015, 10551056.)
In sum, the jury's verdicts, together with the court's instructions, conclusively demonstrate the jury found Lopez acted with the requisite intent and conduct to convict him of first degree murder and attempted murder under the amendments to sections 188 and 189. He therefore is ineligible for relief under section 1172.6 as a matter of law. (See Williams, supra, 86 Cal.App.5th at pp. 1246-1247.)
DISPOSITION
We affirm the order denying Moises Lopez's petition for resentencing under section 1172.6.
WE CONCUR: LAVIN, ACTING P. J., ADAMS, J.