Opinion
E079191
03-11-2024
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO HERNANDEZ SALAZAR, Defendant and Appellant.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Lynne G. McGinnis and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF108282 John D. Molloy, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Lynne G. McGinnis and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
On January 16, 2003, Pedro Bravo (the victim) was shot and killed while walking down the street. Defendant and appellant Alberto Hernandez Salazar and codefendant Jose Camarena were jointly charged and tried for his murder. Instructed on two theories (intentional murder and aiding and abetting), the jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)), but convicted codefendant Camarena of second degree murder (§ 187, subd. (b)). Defendant was sentenced to state prison for a total term of 25 years to life without the possibility of parole.
All undesignated section references are to the Penal Code.
Nearly 20 years later, defendant filed a resentencing petition under section 1172.6 (former § 1170.95) based on changes to murder liability in California. The superior court summarily denied his petition, and defendant appeals contending the court violated the procedures established "in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) . . . [by] dismiss[ing] the petition on the oral representation of the prosecution" and incorrectly concluding "the jury's true finding on the special circumstance rendered [him] 'statutorily ineligible.'" Although the court procedurally erred, as we explain, the error was harmless; the record establishes defendant is ineligible for section 1172.6 relief as a matter of law. (Lewis, at p. 974.) We therefore affirm.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) The current section numbering will be used throughout this opinion.
I. PROCEDURAL BACKGROUND AND FACTS
We take judicial notice of our opinion in defendant's prior appeal in People v. Salazar et al. (Jan. 19, 2007, E039164) [nonpub. opn.] and deem it to be part of the record in this case. Both parties take the facts verbatim from Salazar, supra, E039164 and we will do the same to the extent the facts are relevant. However, we are mindful that the "factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing. [Citation.] If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage." (People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted; see People v. Clements (2022) 75 Cal.App.5th 276, 292 ["[T]rial judges should not rely on the factual summaries contained in prior appellate decisions when a section [1172.6] petition reaches the stage of a full-fledged evidentiary hearing."].) Although our opinion is not admissible evidence, "[a]s a general rule, if inadmissible evidence is admitted without objection, it is substantial evidence; the failure to object forfeits its inadmissibility. [Citation.] Thus, for example, hearsay admitted without objection is substantial evidence sufficient to support a judgment. [Citation.]" (People v. Vance (2023) 94 Cal.App.5th 706, 713.)
Following the shooting that killed the victim on January 16, 2003, law enforcement officers recovered four shotgun shell casings from the scene, two of which were found under the victim's body. (Salazar, supra, E039164.) Two days later, law enforcement officers arrested codefendant Camarena "in an unrelated incident for possession of a sawed-off shotgun. Forensic examination of the shotgun shell casings recovered [from] the shooting of [the victim] revealed that they had been fired from . . . [codefendant] Camarena's sawed-off shotgun. On January 29, 2003, law enforcement officers arrested defendant Salazar, also in an incident unrelated to the shooting of [the victim], after they found him [(defendant)] in possession of a loaded semiautomatic handgun.
"When questioned by law enforcement officers, both defendants initially denied any involvement in the shooting of [the victim]. Eventually, [co]defendant Camarena admitted that he was in his truck, driving along Hastings Boulevard with 'some fool' whom he refused to identify. [The victim] was walking on the side of the road and threw some gang signs as [co]defendant Camarena drove by so [he] made a U-turn and drove back to confront [the victim]. [Co]defendant Camarena was holding the shotgun as he got out of the truck. He shot [the victim] because [he] rushed at him [(codefendant Camarena)]. [Cod]efendant Camarena admitted that the shotgun he had in his possession at the time of his arrest belonged to him.
"In his interview, defendant Salazar stated that he was with [co]defendant Camarena and that they confronted [the victim] after he threw gang signs. Defendant Salazar confronted [the victim] and told him he was in Carnales territory. When [the victim] responded, 'No this is Florencia,'[] defendant Salazar shot him. According to defendant Salazar, [the victim] had a knife, a fact the investigating officer had told him earlier in the interview, and [the victim] had lunged at defendants. Defendant Salazar stated that he had tried to shoot but his gun jammed so [co]defendant Camarena fired two shots from his shotgun, both of which hit [the victim] in the body. Defendant Salazar then took the shotgun from [co]defendant Camarena and fired two more shots. All four shots were fired within very close range of [the victim]." (Salazar, supra, E039164.)
"When the investigating officer told defendant Salazar that [co]defendant Camarena claimed to be the shooter, defendant Salazar 'stuck to his guns.' Defendant Salazar explained that his brother had been shot and killed and that in taking the blame, [co]defendant Camarena was probably trying to help defendant Salazar's mother so that she would not lose two sons, one to a shooting and the other to prison." (Salazar, supra, E039164.)
"Investigating law enforcement officers recovered a knife from the crime scene. It was found five or six inches from [the victim's] body and the blade was closed." (Salazar, supra, E039164.)
B. Charges, Jury Instructions, Closing Arguments and Verdicts.
Defendant and codefendant Camarena were both charged with willful, unlawful, deliberate, and premeditated murder. Both were alleged to have personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and to have personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). It was further alleged that the murder was for the benefit of a gang (§ 186.22, subd. (d)) and it was carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)).
The prosecutor tried the case on two theories of liability: actual shooter or aider and abettor who shared the perpetrator's mental state of intent to kill. The jury was instructed on intentional murder-(CALJIC Nos. 8.10 (murder), 8.20 (first degree) and CALJIC No. 8.30 (second degree))-and the general concepts of aiding and abetting (CALJIC Nos. 3.00, 3.01). Jurors were instructed that malice is express or implied, and murder which "is perpetrated by any kind of willful, deliberate, and premeditated killing with express malice aforethought is murder of the first degree." Otherwise, the killing is murder of the second degree when the defendant "intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation," or voluntary manslaughter when the defendant kills "with an intent to kill, or with conscious disregard for human life." CALJIC No. 8.40 explained that conscious disregard for life "as used in this instruction, means that a killing results from the doing of 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."
In relevant part, former CALJIC No. 8.20 told jurors that "[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] . . . [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree."
"Murder of the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation." (CALJIC No. 8.30.)
Regarding the charged enhancements, there was no requirement the jury find that defendant was the direct perpetrator. Rather, the instructions on the firearm enhancement permitted a true finding if jurors concluded he "directly use[d] a firearm." (CALJIC Nos. 3.00, 17.19.5.) Also, the jurors were instructed that if they found defendant guilty of murder in the first degree, they had to determine the special circumstance of whether it was an intentional killing by a street gang member (§ 190.2, subd. (a)(22)). Specifically, the jurors were instructed with CALJIC No. 8.80.1, which required a finding that defendant is either the actual killer or "with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree." Pursuant to CALJIC No. 8.81.22, the jurors could find defendant guilty of an intentional killing by a street gang member only if they found he had acted with the intent to kill the victim.
The prosecutor tried the case on the theory defendant intentionally shot the victim. He argued the case involved a revenge killing by a gang member. He pointed out the victim was walking down the street, at night, when defendant and codefendant Camarena made "a conscientious decision to stop their truck, turn around," and "approach [him]. They get out of their truck armed with weapons, each of them, and they both confront [the victim]." The prosecutor noted that defendant, in his video interview, confessed that he shot the victim after codefendant Camarena unloaded two rounds from his shotgun. The defendant tried to shoot the victim with his semiautomatic handgun, but it jammed. Thus, he took the shotgun from codefendant Camarena and fired two more rounds at the victim. The prosecutor pointed out that defendant's brother had been shot and killed by rival gang members, and defendant thought the victim was hanging around one of those rival gang members.
Both parties state defendant filed a request for judicial notice of the appellate record in Salazar, supra, E039164; however, we are unable to find such request filed in this case. Nonetheless, we take judicial notice of the record of defendant's prior appeal in case No. E039164 (specifically, the clerk's transcript and reporter's transcript) and deem them to be part of the record in this case.
Defense counsel conceded defendant, a gang member, shot the victim, but argued defendant acted in self-defense, either "pure self-defense" or imperfect self-defense. Counsel pointed out that defendant admitted to the officers that he shot the victim, but claimed that he did so because the victim was "coming at them" with a knife. In his rebuttal, the prosecutor asserted "self-defense is not applicable to this case for the simple fact that they are the ones that actually set the wheels in motion. They're the ones that created the circumstances." He explained the defendants were driving down the street at night when they see the victim, turn the truck around, get out of the truck, and confront him. While the victim had a knife in his possession, he "never had a chance to unfold" it. According to the prosecutor, the self-defense claim arose after the officer told defendants the victim had a knife.
The jury began deliberations on September 12, 2005, and two days later, presented all verdicts as to defendant, but continued to deliberate as to codefendant Camarena. The jury convicted defendant of first degree murder and found true the special circumstance allegations against him. In contrast, the jury deadlocked on the first degree murder charge against codefendant Camarena, and the charge was withdrawn. After further deliberations, jurors found him guilty of second degree murder and found all the special circumstance allegations to be true. Defendant was sentenced to state prison for a total determinate term of 25 years, to be followed by a life term without the possibility of parole. In his direct appeal, we affirmed the judgment, but modified the sentence to delete the parole restitution revocation fine. (Salazar, supra, E039164.)
Defendant's verdicts were dated September 13, 2005.
Codefendant Camarena's verdict for second degree murder was dated September 14, 2005.
C. Defendant's Petition for Resentencing.
On May 9, 2022, defendant filled out and filed a form petition for resentencing under section 1172.6 alleging he could no longer be convicted of murder because of the changes to the law effected under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437). He requested appointment of counsel. On June 10, 2022, the superior court summarily denied the petition prior to briefing, stating "the special was found true. Defendant is statutorily ineligible." Defense counsel was silent.
"THE COURT: This is a public defendant matter. VMB is appointed. "[DEFENSE COUNSEL]: Okay. Do you want confirmation on 7/1? "THE COURT: Yes, please. Mr. [Prosecutor]? "[PROSECUTION]: He is ineligible in our opinion. Does the court want to hear it now? "THE COURT: Tell me why. "[PROSECUTION]: Jury returned verdict back with special circumstance and firearm instructions and opinions are in imaging. The instructions have nothing on natural and probable consequences. We have the defendant's admissions, including the fact that defendant admitted taking the shotgun from his closet and firing two shots into the victim. "THE COURT: Yes, and the special was found true. Defendant is statutorily ineligible. "[DEFENSE COUNSEL]: I'll take the assignment if you want. "THE COURT: Very good."
II. DISCUSSION
Defendant contends the superior court erred in summarily denying his petition before (1) providing the parties the opportunity to submit written briefs, (2) reviewing the record of conviction, and (3) holding an evidentiary hearing. The Attorney General contends any error was harmless because defendant, as a direct perpetrator, is ineligible for section 1172.6 relief as a matter of law. We agree the court erred in failing to comply with the requirements set forth in section 1172.6, but find the error to be harmless.
A. Applicable Law.
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 "'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 . . . who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (Lewis, supra, 11 Cal.5th at p. 959.) "Senate Bill 1437 amended section 188, subdivision (a)(3), to require that all principals to murder must act with either express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). [Citation.] Senate Bill 1437 amended section 189, subdivision (e), to provide that for a felony-murder conviction the defendant had to be the actual killer, an aider and abettor who acted with the intent to kill, or a major participant who acted with reckless indifference to human life in the underlying felony. (Stats. 2018, ch. 1015, § 3.)
"Senate Bill 1437 added section 1172.6, which provides a procedure for defendants convicted of murder to seek resentencing if they are able to establish they could not be convicted of murder under the amendments to sections 188 and 189 effective January 1, 2019. [Citation.]" (People v. Williams (2022) 86 Cal.App.5th 1244, 1250 (Williams).) "A person convicted of . . . 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 . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced." (§ 1172.6, subd. (a).) The petition must allege the petitioner was (1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person's participation in a crime; (2) convicted of murder, attempted murder, or manslaughter; and (3) could not presently be convicted of murder because of changes to sections 188 or 189. (§ 1172.6, subd. (a).)
Where the petition complies with the three requirements, the superior court proceeds to section 1172.6, subdivision (c), to assess whether the petitioner has made "'a prima facie showing'" for relief. (Lewis, supra, 11 Cal.5th at p. 960.) The prima facie inquiry "is limited....'"[T]he 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. If so, the court must issue an order to show cause."' [Citation.]" (Id. at p. 971.) At the prima facie hearing, the court may consider the record of conviction. (Ibid.) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the [superior] court may dismiss the petition." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) A petitioner is ineligible for section 1172.6 relief as a matter of law if, for example, the jury instructions show that jurors were not instructed on any theory of liability for murder that allowed malice to be imputed to the defendant, or if the record of conviction shows that his or her conviction was based on a theory of liability that remains valid under Senate Bill 1437. (People v. Cortes (2022) 75 Cal.App.5th 198, 205 (Cortes) ["'notwithstanding Senate Bill 1437's elimination of natural and probable consequences,'" implied malice remains a valid theory of second degree murder]; see People v. Medrano (2021) 68 Cal.App.5th 177, 182-183 [defendant convicted of conspiracy to murder ineligible for § 1172.6 relief].)
The record of conviction includes jury verdicts, jury instructions, and closing arguments. (People v. Harden (2022) 81 Cal.App.5th 45, 54-56 (Harden) [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]; People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage].) This does not include our appellate opinion. "[T]he factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing. [Citation.] If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage." (People v. Flores, supra, 76 Cal.App.5th at p. 988, fn. omitted; see People v. Clements, supra, 75 Cal.App.5th at p. 292 ["[T]rial judges should not rely on the factual summaries contained in prior appellate decisions when a section [1172.6] petition reaches the stage of a full-fledged evidentiary hearing."].)
In this case, the superior court denied defendant's petition at the prima facie stage under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we review de novo. (Id. at p. 961; Harden, supra, 81 Cal.App.5th at p. 52.) Because the court's statutory omissions at the prima facie stage under section 1172.6 are not constitutional violations, we apply the state law standard of People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis, at pp. 973-974.)
B. Analysis.
Defendant contends the jury could have convicted him of murder on a theory of imputed malice because the aiding and abetting instructions failed to direct the jury to find that his "actions in fact assisted in the commission of the crime." We disagree.
Defendant initially faults the prosecution for "bolster[ing] his 'opinion' on [defendant's] eligibility for relief with a reference to trial evidence," specifically defendant's admission to taking the shotgun and firing two shots at the victim. However, as the Attorney General notes, nothing in the record indicates the superior court considered this evidence or engaged in fact finding.
The jury in this case was not instructed on any theory of liability for murder that allowed malice to be imputed to defendant. (See Cortes, supra, 75 Cal.App.5th at p. 205.) Nonetheless, defendant focuses on an isolated phrase in the current aiding and abetting instructions-defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime-to argue the instructions given in his trial permitted jurors to impute malice to him. Reading the instructions as a whole, as we must (People v. Burton (2018) 29 Cal.App.5th 917, 925), we conclude the theory on which defendant's jury was instructed was direct aiding and abetting, which does not qualify for section 1172.6 relief.
The trial court instructed the jury with CALJIC No. 8.10 that murder requires malice aforethought. The court explained that malice may be express or implied: express "when there is manifested an intention unlawfully to kill a human being"; and implied when "1. The killing resulted from an intentional act; [¶] 2. The natural consequences of the act are dangerous to human life; and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (CALJIC No. 8.11.) Jurors were told that all principals in a crime are "equally guilty" of that crime. (CALJIC No. 3.00.) CALJIC No. 3.00 defined principals as "[t]hose who directly and actively commit the act constituting the crime," as well as "[t]hose who aid and abet the commission of the crime." Reading CALJIC No. 3.01, the court further instructed that "[a] person aids and abets the commission of a crime when he: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages, or instigates the commission of the crime." (CALJIC No. 3.01.) Two other instructions ensured that to convict defendant as an aider and abettor of the murder, the jury had to consider each defendant's guilt separately from the other's (CALJIC No. 17.00 ["You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to both the defendants, but do agree upon a verdict as to any one of them, you must render a verdict as to the one as to whom you agree."]), and also find that each defendant himself harbored the requisite intent to kill (CALJIC No. 3.31.5 ["In the crimes and allegations charged there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed. [¶] The mental states required are included in the definitions of the crimes and allegations set forth elsewhere in these instructions."]).
CALJIC No. 3.00 provides: "Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime. [¶] In regards to the crime charged in Count One, the jury does not need to unanimously determine if a defendant is a direct perpetrator or an aider and abettor. If the jury has a reasonable doubt as to whether a defendant is a direct perpetrator or an aider and abettor, but is convinced beyond a reasonable doubt that a defendant is one or the other, then it has been proven that the defendant is guilty as a principal to the crime. [¶] In regards to any special allegation to Count One requiring personal use of a firearm, a defendant is not guilty of the allegation if he merely aids and abets another to use a firearm. For these special allegations, personal use of a firearm applies only to those who, themselves, directly use the firearm."
As instructed, the jury was required to consider each defendant's guilt separately (CALJIC No. 17.00), find an intent to kill on the part of each defendant individually (CALJIC No. 3.31), and find that the defendant who participated in the murder as an aider and abettor did so with knowledge of the perpetrator's unlawful purpose and acted with his own intent to commit the crime (CALJIC No. 3.01). We presume the jurors understood, correlated, and followed all the court's instructions. (Williams, supra, 86 Cal.App.5th at p. 1256; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433 ["'It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.'"].)
Accordingly, to convict defendant and codefendant Camarena, the jury had to find that each defendant separately committed murder-whether as the actual killer or as a direct aider and abettor-with express or implied malice. "'[D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea. [Citation.] In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the lifeendangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.'" (People v. Reyes (2023) 14 Cal.5th 981, 990-991.) Consequently, aiding and abetting implied malice murder is a theory of murder based on the aider and abettor's own mental state; it does not rely on imputed malice. (People v. Silva (2023) 87 Cal.App.5th 632, 639 ["'When a person directly perpetrates a killing, it is the perpetrator who must possess . . . malice. [Citations.] Similarly, when a person directly aids and abets a murder, the aider and abettor must possess malice aforethought.'"]; People v. Schell (2022) 84 Cal.App.5th 437, 443-444; People v. Vizcarra (2022) 84 Cal.App.5th 377, 390-391; People v. Vargas (2022) 84 Cal.App.5th 943, 955.)
Citing People v. Langi (2022) 73 Cal.App.5th 972 and People v. Maldonado (2023) 87 Cal.App.5th 1257, defendant argues that since the instructions on aiding and abetting permitted the jury to impute malice to him, he may "litigate his entitlement to relief under section 1172.6 even in the absence of instructions on the natural and probable consequences doctrine." Langi and Maldonado are inapposite because those cases contained jury instructions that did not require finding that the defendant intended to kill. (People v. Coley (2022) 77 Cal.App.5th 539, 547; see Langi, at pp. 982-983 [jury instructions on aiding and abetting an implied malice second degree murder created ambiguity that did not require finding of intent to kill or conscious disregard of risk]; Maldonado, at p. 1259 [jury instructions on aiding and abetting an implied malice lying-in-wait murder, which does not require an intent to kill, allowed the jury to impute malice to the defendant based solely on his participation in a crime].)
Again, the jury was presented two theories of liability for the first degree murder-direct perpetrator liability or direct aider and abettor liability-each of which required the jurors to find defendant acted with intent to kill. According to the record of conviction, defense counsel conceded defendant, a gang member, shot the victim, but argued defendant acted in self-defense, either "pure self-defense" or imperfect selfdefense, because the victim was "coming at them" with a knife. It is undisputed that defendant was convicted of first degree murder, either as the actual shooter or an aider and abettor acting with the intent to kill. Aiding and abetting remains a viable theory of murder. (Williams, supra, 86 Cal.App.5th at p. 1258 [individual convicted of murder as an aider and abettor is "ineligible for section 1172.6 relief as a matter of law"]; accord People v. Estrada (2022) 77 Cal.App.5th 941, 945 [murder conviction based on direct aiding and abetting with intent to kill is ineligible for section 1172.6 relief].) And relief is not available to defendants convicted of murder who are the actual shooters. (People v. Myles (2021) 69 Cal.App.5th 688, 692-694 [affirming denial of resentencing because defendant admitted that she was actual killer; defendant therefore was "'directly liable,'" "'not vicariously liable'"]; People v. Delgadillo (2022) 14 Cal.5th 216, 233 [defendant was not entitled to resentencing because he "was the actual killer and the only participant in the killing"].) Thus, by finding defendant guilty of first degree murder, the jury necessarily determined that he acted with the intent to kill.
Notwithstanding the above, the jury was also instructed that if it found defendant guilty of murder in the first degree, it had to determine the special circumstance of whether it was an intentional killing by a street gang member. Jurors were told: "If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree." The jurors' true finding on this special circumstance-that defendant had the intent to kill-refutes the allegations in the petition for resentencing and demonstrates he was not eligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 971; People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
In his opening brief, defendant noted the issue of whether a true finding on a gang-murder special circumstance precludes a defendant from making a prima facie showing of eligibility for resentencing was pending before the Supreme Court. (People v. Curiel (2023) 15 Cal.5th 433.) In Curiel, the jury was instructed on the natural and probable consequences doctrine; jurors were required to find only that Curiel knew that the actual killer intended to commit one of the underlying target offenses and that Curiel intended to aid him in that offense, not murder. (Id. at p. 468.) Because the facts, jury instructions, and verdicts in the case before this court are different from those in Curiel, the Supreme Court's holding is of no assistance to defendant. (Id. at p. 471 ["our holding today does not necessarily apply to other cases where the jury found intent to kill .... The jury instructions in other cases might be materially different, and they might therefore have required different factual findings by the jury"].)
Based on defendant's record of conviction, we conclude it is not reasonably probable he would have received a better outcome had the superior court (1) provided the parties with the opportunity to submit written briefs, (2) reviewed the record of conviction, and (3) held an evidentiary hearing. Nothing would have changed the underlying jury instructions, verdicts, or theories used to find defendant guilty. He is ineligible for relief under section 1172.6 because he was either the actual shooter or an aider and abettor acting with the intent to kill; the trial court did not prejudicially err when it summarily denied his petition.
III. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
We concur: MILLER J. CODRINGTON J.