SEGAL, ACTING P. J.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA020125-02 Tammy Chung Ryu, Judge.
Spolin & Dukes, Aaron Spolin, Caitlin Dukes, and Jeremy M. Cutcher for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, ACTING P. J.
INTRODUCTION
In 1993 a jury convicted Alex Herrera of attempted murder. In 2022 Herrera filed a petition for resentencing under Penal Code former section 1170.95 (now section 1172.6), alleging that he was convicted of attempted murder under the natural and probable consequences doctrine and that he could not be convicted under current law. The superior court found Herrera failed to state a prima facie case for relief and denied the petition without issuing an order to show cause. Because the record of conviction shows the jury convicted Herrera as a direct aider and abettor who intended to kill, we affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Herrera of Aiding and Abetting Attempted Murder
We described much of the factual background of this case in Herrera's direct appeal. (See People v. Pena &Herrera (Apr. 19, 1995, B075510) [nonpub. opn.] (Herrera I).) On July 8, 1992 David Kirkwood and Arlandis Hinton were standing in front of Kirkwood's girlfriend's apartment on 109th Street near the corner of Mona Boulevard. Kirkwood and Hinton saw Herrera and Alvaro Cruz Pena at the corner. Pena was wearing a black trench coat and a beanie. Herrera and Pena walked toward Kirkwood and Hinton, and as Herrera stood by Pena's side, Pena shot Kirkwood in the arm and Hinton in the back. Pena and Herrera fled together. (Ibid.)
After the shooting, Kirkwood and Hinton identified Pena as the shooter and Herrera as his companion. Hinton said that he had seen Herrera before, that the perpetrators were members of the Colonial Watts gang, and that Hinton heard "Joker" was the shooter. (Herrera I, supra, B075510 .)
Javier Z., a bystander, saw two men walk east on 108th Street and turn at Mona Boulevard. One man wore a dark trench coat and had a shotgun protruding from his sleeve. Moments later, Javier heard two loud explosions and saw the two men running west on 108th Street. This time, the companion of the man in the trench coat was trying to conceal the shotgun under his coat. (Herrera I, supra, B075510 .)
Another bystander, Gabriela G., saw Herrera walk up Mona Boulevard to the corner of 109th Street and glance down 109th Street. Herrera then walked back to Pena, who was standing approximately eight feet behind him on Mona Boulevard. Pena had a rifle. Pena and Herrera walked around the corner onto 109th Street. Gabriela identified Herrera and Pena in a photographic lineup as the men she saw at the corner and Herrera as the person who glanced around the corner. (Herrera I, supra, B075510 .)
A gang expert testified that Pena and Herrera were members of the Colonial Watts Wagon gang, that Pena's moniker was Joker, and that Kirkwood was a member of a rival gang. The shooting occurred within the rival gang's territory and a few blocks from Colonial Watts gang territory. (Herrera I, supra, B075510 .)
A jury convicted Herrera on two counts of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664, subd. (a)) and found true an allegation a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced Herrera to two concurrent terms of life in prison, plus one year for the firearm enhancement. We affirmed the judgment. (Herrera I, supra, B075510.)
B. The Superior Court Denies Herrera's Petition Under Section 1172.6
In 2022 Herrera filed a petition for resentencing under former section 1170.95, now section1172.6. Herrera alleged that he was not the shooter, that he "must have been convicted of attempted murder pursuant to the natural and probable consequences doctrine," and that he could not now be convicted of attempted murder because of legislative changes to sections 188 and 189. The People and Herrera filed briefs.
The superior court denied Herrera's petition. The court stated that it had reviewed the jury instructions and that the jury was instructed on aider and abettor liability but not the natural and probable consequences doctrine. The court ruled Herrera failed to establish a prima facie case for relief because he was convicted as a direct aider and abettor. Herrera timely appealed.
DISCUSSION
Effective 2019, the Legislature 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, 986; People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly narrowing the 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; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule. (Gentile, at pp. 842-843.)
Section 1172.6 authorizes an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition the superior court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder because of the legislative changes to the definitions of the crime. (See People v. Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile, supra, 10 Cal.5th at p. 843.) Effective 2022, the Legislature amended section 1172.6 to apply to individuals convicted of attempted murder under the natural and probable consequences doctrine. (§ 1172.6, subd. (a); see People v. Saibu (2022) 81 Cal.App.5th 709, 747.)
If a section 1172.6 petition contains all the required information, the court must appoint counsel to represent the petitioner if requested. (Lewis, supra, 11 Cal.5th at pp. 962-963; see § 1172.6, subd. (b)(1)(A), (b)(3).) The prosecutor must then file a response to the petition, the petitioner may file a reply, and the court must hold a hearing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (§ 1172.6, subd. (c).)
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 or her factual allegations were proved. If so, the court must issue an order to show cause."'" (Lewis, supra, 11 Cal.5th at p. 971; see People v. Curiel (2023) 15 Cal.5th 433, 463-464.) 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." (Lewis, at p. 971; see Curiel, at pp. 463-464; People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) "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.) But "[i]f the record of conviction '"'contain[s] facts refuting the allegations made in the petition,'"'" the "trial court is justified in rejecting them." (Eynon, at p. 975; see Lewis, at p. 971.) We review de novo an order denying a petition under section 1172.6 without issuing an order to show cause. (Williams, at p. 1251; People v. Coley (2022) 77 Cal.App.5th 539, 545.)
B. Herrera Is Ineligible for Relief Under Section 1172.6 Because He Was Not Convicted of Attempted Murder Under the Natural and Probable Consequences Doctrine
Herrera argues that his petition included all the information section 1172.6 requires and that the superior court erred by not accepting his allegations as true. The People argue Herrera is ineligible for resentencing because the jury found him guilty as a direct aider and abettor who acted with the intent to kill. The People are correct.
Section 1172.6 provides relief to individuals "convicted of . . . attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a); see People v. Coley, supra, 77 Cal.App.5th at p. 548 [section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine"].) As Herrera concedes, the jury was not instructed on the natural and probable consequences doctrine. Therefore, he is ineligible for resentencing under section 1172.6 as a matter of law. (See People v. Allen (2023) 97 Cal.App.5th 389, 395 ["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 affected by [the] changes to sections 188 and 189."]; People v. Harden (2022) 81 Cal.App.5th 45, 52 ["if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law"]; People v. Cortes (2022) 75 Cal.App.5th 198, 203 [defendant "could not demonstrate that he was convicted of either murder or attempted murder under the natural and probable consequences doctrine because the jury was not instructed on that theory of liability"]; People v. Offley (2020) 48 Cal.App.5th 588, 599 ["if the jury did not receive an instruction on the natural and probable consequences doctrine, the jury could not have convicted the defendant on that basis, and the petition should be summarily denied"].)
Herrera argues he stated a prima facie case because the superior court had to accept his allegations as true. But as Herrera also states in his opening brief, a "reviewing court must take the petitioner's allegations of eligibility as true unless the record of conviction conclusively demonstrates otherwise." And Herrera's record of conviction conclusively demonstrates that, contrary to the allegations in his petition, he was not convicted under the natural and probable consequences doctrine. (See, e.g., People v. Bodely (2023) 95 Cal.App.5th 1193, 1205 ["The record of conviction contains facts refuting defendant's allegations in his petition that he could not be convicted of murder under current law, and the trial court was thus justified in making a credibility determination adverse to the petitioner."].)
Instead, the jury instructions and verdict demonstrate Herrera was convicted as a direct aider and abettor who acted with the intent to kill. "Direct aiding and abetting remains a valid theory of attempted murder" after the Legislature eliminated liability for murder and attempted murder under the natural and probable consequences doctrine. (People v. Coley, supra, 77 Cal.App.5th at p. 548; see People v. Offley, supra, 48 Cal.App.5th at pp. 595-596 [legislative changes to sections 188 and 189 "did not . . . alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator'"]; see also People v. Gentile, supra, 10 Cal.5th at p. 848 [a "direct aider and abettor to murder must possess malice aforethought"]; People v. McCoy (2001) 25 Cal.4th 1111, 1118 [to be convicted of attempted murder under a direct aiding and abetting theory, a defendant must have had the intent to kill].) The trial court instructed the jury on direct aiding and abetting with CALJIC No. 3.01. The court told the jury that a person aids and abets a crime when he or she "(1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime." The trial court also instructed the jury with CALJIC No. 8.66, which stated the prosecutor must prove each of the following elements to convict a defendant of attempted murder: "1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being."
The trial court did not instruct the jury with CALJIC No. 3.02, which states one who aids and abets a target crime is also guilty of any other crime "committed by a principal which is a natural and probable consequence" of the target crime.
Because the jury found Herrera guilty of attempted murder as an aider and abettor, the jury necessarily found (1) Pena acted with express malice and intended to kill; (2) Herrera knew Pena's unlawful purpose (to kill); and (3) Herrera acted with the intent to commit, encourage, or facilitate the attempted murder. Taken together, the instructions required that, to convict Herrera of attempted murder, the jury had to find Herrera shared Pena's intent to kill, which renders Herrera ineligible for resentencing under section 1172.6 as a matter of law. (See People v. Jenkins (2021) 70 Cal.App.5th 924, 934 ["a defendant is ineligible for relief if the trier of fact found beyond a reasonable doubt that the defendant intended to kill"].)
The parties agree the jury convicted Pena as a direct perpetrator and Herrera as an aider and abettor.
Citing People v. Langi (2022) 73 Cal.App.5th 972 (Langi), Herrera argues that, even though the jury was not instructed on the natural and probable consequences doctrine, he "may have been convicted due to imputed malice." Langi is distinguishable. In Langi the jury convicted the defendant of second degree murder as an aider and abettor. (Id. at p. 977.) As in Herrera's case, the court instructed the jury on aiding and abetting with CALJIC No. 3.01, but did not instruct the jury on the natural and probable consequences doctrine. (Langi, at pp. 980-981.) Unlike Herrera's case, however, the court in Langi instructed the jury on second degree implied malice murder with CALJIC No. 8.31, which "specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death." (Langi, at p. 982.)
CALJIC No. 8.31 "stated that a killing is a second degree murder if '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. [¶] When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.'" (Langi, supra, 73 Cal.App.5th at p. 981.)
The court in Langi concluded the combined effect of the aiding and abetting instruction and the second degree murder instruction created an ambiguity that allowed the jury to "find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice." (Langi, supra, 73 Cal.App.5th at p. 982.) "Thus, while the perpetrator must have deliberately performed the fatal act 'with knowledge of the danger to, and with conscious disregard for, human life' (CALJIC No. 8.31), his purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim. Since the perpetrator's purpose need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had 'murderous intent,' certainly the aider and abettor need not have had such an intent." (Id. at pp. 982-983.)
That potential ambiguity is not present here, where the jury convicted Herrera of aiding and abetting attempted murder, not second degree implied malice murder. The court in Herrera's trial did not instruct the jury on implied malice. Instead, the court instructed the jury that the direct perpetrator of the attempted murder must have "harbored express malice" and a "specific intent to kill" and that the aider and abettor must have shared that intent. (See People v. Lee (2023) 95 Cal.App.5th 1164, 1191 [the concern in Langi "that the direct perpetrator of an implied malice murder . . . need not harbor an intent to kill" was not present where the instructions "required the perpetrator of the attempted murder to 'harbor[ ] express malice aforethought, namely, a specific intent to kill'"]; People v. Coley, supra, 77 Cal.App.5th at p. 547 [where the instructions required the jury to find the defendant intended to kill, "Langi does not apply because that case involves implied malice"].)
Herrera also argues the superior court "effectively engaged in factfinding which involved the weighing of evidence, which it should not have done." But the court did not weigh any evidence. Instead, the court properly based its decision on the jury instructions and the verdict. (See Lewis, supra, 11 Cal.5th at p. 971 [court may reject allegations in a section 1172.6 petition if they are refuted by facts in the record of conviction]; People v. Flores (2023) 96 Cal.App.5th 1164, 1170 [record of conviction includes jury instructions and verdict]; People v. Bodely, supra, 95 Cal.App.5th at p. 1200 ["jury instructions are part of the record of conviction and may be reviewed to make the prima facie determination"].)
Herrera also suggests he made a prima facie case because, in our opinion in his direct appeal, we referred to him as a "lookout," but he does not explain why this matters or contend the superior court improperly relied on our opinion in denying his petition.
Because the jury did not convict Herrera under the natural and probable consequences doctrine or any other theory of imputed malice, Herrera can "presently be convicted of murder" (§ 1172.6, subd. (a)(3)), notwithstanding the changes to sections 188 and 189. (See People v. Mancilla (2021) 67 Cal.App.5th 854, 864, 867-868 [defendant was "ineligible for relief under section [1172.6] as a matter of law" because the jury did not convict him under a theory of liability affected by the Legislature's changes to sections 188 and 189].) The superior court did not err in denying Herrera's petition.
DISPOSITION
The order denying Herrera's petition under section 1172.6 is affirmed.
We concur: MARTINEZ, J., RAPHAEL, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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