California Court of Appeal Jan 23, 2025 No. E082098Unpublished
Filed 1/23/25 P. v. Aguirre CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082098
v. (Super.Ct.No. RIF123528)
JOHNNY RAY AGUIRRE, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley, and Michael D. Butera, Deputy Attorneys General, for Plaintiff
and Respondent.
1
Defendant and appellant Johnny Ray Aguirre, Jr. appeals from the trial court’s
order denying his second petition for resentencing pursuant to Penal Code section
1172.6.1 For the reasons set forth post, we affirm the court’s order.
FACTUAL AND PROCEDURAL HISTORY
In September 2006 a jury convicted defendant and a fellow gang member, Joey
In September 2019 defendant filed a petition in the superior court under former
section 1170.95, now renumbered section 1172.6, to vacate his murder conviction under
the statute. The court denied the petition at the prima facie stage, noting the jury was not
instructed on any theory of imputed malice such as felony murder or the natural and
probable consequences doctrine, and defendant was therefore ineligible for relief.
In January 2023 defendant sought resentencing again under section 1172.6, which
the court similarly denied at the prima facie stage. The court concluded again that the
record contradicted his claims in his form petition that: (1) his conviction was due to a
theory or theories of imputed malice and (2) “I could not now be convicted of murder
because of” changes to the law of murder invalidating those theories.
DISCUSSION
Defendant contends the trial court erroneously denied his resentencing petition at
the prima facie stage instead of ordering an evidentiary hearing under section 1172.6.
2 We include this background to give context to defendant’s claim in his present appellate challenge that his conviction resulted from the jury improperly imputing to him the requisite malice for murder that his codefendants may have harbored. Defendant does not suggest the trial court considered our prior opinion or improperly relied on facts recited in it to deny him relief. (See People v. Flores (2022) 76 Cal.App.5th 974, 988 [facts as recited in a prior appellate opinion incompetent to preclude resentencing relief under § 1172.6, including “at the prima facie stage”]; accord, People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.)
3
Denial at the trial court’s initial “ ‘stage of prima facie review . . . is appropriate only if
the record of conviction demonstrates that “the petitioner is ineligible for relief as a
matter of law.” [Citations.] This is a purely legal conclusion, which we review de
novo.’ ” (People v. Evrin (2021) 72 Cal.App.5th 90, 101.)
As a preliminary matter, the People contend that collateral estoppel precluded
defendant’s second section 1172.6 petition. Successive petitions under the statute are not
barred when there has been a “change in the law affecting the petitioner.” (People v.
Farfan (2021) 71 Cal.App.5th 942, 951.) We therefore turn to defendant’s claim that
enactment of Senate Bill No. 775 (2021-2022 Reg. Sess.) amending section 1172.6 since
his first petition, as well as subsequent case law, require the conclusion his resentencing
petition is not barred as a matter of law.
A. GOVERNING LAW
Effective January 1, 2019, Senate Bill No. 1437 restricted the scope of the felony
murder rule by amending section 189, and it eliminated liability for murder under the
natural and probable consequences doctrine by amending section 188. (Stats. 2018,
ch. 1015, § 1, subd. (f); see People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 930
(Berry-Vierwinden).) The amendments to section 188 in particular provided that, when
the felony murder rule does not apply, a principal in the crime of murder can only be
convicted if he or she acted “with malice aforethought,” specifying further that “[m]alice
shall not be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
4
Senate Bill No. 1437 also established the procedures now codified in
section 1172.6 to allow defendants convicted of murder before the bill’s enactment to
petition the sentencing court to vacate their conviction and resentence them on any
remaining counts. (See People v. Strong (2022) 13 Cal.5th 698, 708.)
The petition process requires the defendant to make a prima facie showing that all
requirements for eligibility are met. (See § 1172.6, subd. (b)(1)(A); People v. Lewis
(2021) 11 Cal.5th 952, 960, 971.) One of those requirements is that the defendant “could
not presently be convicted of murder or attempted murder because of changes to
Section 188 or 189” made by Senate Bill No. 1437. (§ 1172.6, subd. (a)(3), italics
added.) That requirement did not change with the enactment of Senate Bill No. 775.
Echoing Senate Bill No. 1437’s original amendment of section 188, Senate Bill No. 775
amended section 1172.6 to specify that eligibility for resentencing includes not only those
convicted of felony murder or murder under the natural and probable consequences
doctrine, but also those convicted of murder under any “other theory under which malice
is imputed to a person based solely on that person’s participation in a crime.” (§ 1172.6,
subd. (a); see Berry-Vierwinden, supra, 97 Cal.App.5th at p. 930, fn. 5.)
Because section 1172.6, subdivision (a)(3), still requires as a condition of
eligibility for resentencing that the defendant “could not presently be convicted of murder
or attempted murder because of changes to Section 188 or 189” made by Senate Bill
No. 1437, “a court may deny the [defendant’s resentencing] petition at the prima facie
stage if the record of conviction conclusively establishes that the petitioner was convicted
on a theory not affected by Senate Bill No. 1437.” (Berry-Vierwinden, supra,
5
97 Cal.App.5th at p. 931; accord, e.g., People v. Williams (2022) 86 Cal.App.5th 1244,
1257-1258; People v. Harden (2022) 81 Cal.App.5th 45, 47-48, 59-60.)
“It is well settled that [Senate Bill No. 1437] ‘does not eliminate direct aiding and
abetting liability for murder because a direct aider and abettor to murder must possess
malice aforethought.’ ” (People v. Williams (2022) 86 Cal.App.5th 1244, 1252.)
B. DEFENDANT’S CONTENTIONS AND OUR ANALYSIS
Defendant contends he is not precluded from relief under section 1172.6 because,
at his trial, “the standard instructions on aiding and abetting and implied malice murder
permitted the jury to return a conviction for an accomplice based on imputed malice,”
rather than as a direct aider and abettor. In essence, he argues the instructions “did not
. . . refute his allegations for relief as a matter of law,” but instead bolstered his claim.
Defendant rests his argument for error on Senate Bill No. 775’s broad language
authorizing resentencing petitions under section 1172.6 when a defendant has been
convicted of murder under a theory of imputed malice and on two recent appellate
decisions, People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado) and People v.
Langi (2022) 73 Cal.App.5th 972 (Langi).
We are not persuaded by defendant’s argument, which has been rejected by a line
of cases from the Fourth District, Division One that explain the contention’s origin and
fatal flaw. (People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 932-937; People v.
Flores (2023) 96 Cal.App.5th 1164 (Flores); People v. Burns (2023) 95 Cal.App.5th 862
(Burns).
6
Berry-Vierwinden addressed the origin of the argument beginning with the
defendant’s reliance there, as defendant does here, on Maldonado, which relied on prior
decisions in People v. Powell (2021) 63 Cal.App.5th 689, 278, and Langi, supra, 73
Cal.App.5th 972. Berry-Vierwinden summarized that history as follows: “In Powell, a
direct appeal, the court ruled that CALCRIM No. 401 on direct aiding and abetting
liability was ‘not tailored’ for aiding and abetting a second degree implied malice murder,
because it did not make clear that the aider and abettor must ‘intend the commission of
the perpetrator’s act, the natural and probable consequences of which are dangerous to
human life, intentionally aid in the commission of that act and do so with conscious
disregard for human life.’ (Powell, at p. 714[.]) In Langi, the court extended this holding
to a section 1172.6 proceeding and concluded that the instructional error identified in
Powell permitted the jury to convict the defendant of aiding and abetting a second degree
murder on a theory of imputed malice, making him eligible for relief under the statute as
amended by Senate Bill No. 775. (Langi, at pp. 978-984[.]) Maldonado in turn found
that, because first degree murder by lying in wait may also be based on implied malice,
the reasoning of Langi similarly applied to a conviction of aiding and abetting first degree
murder by lying in wait under CALCRIM Nos. 401, 520, and 521. (Maldonado, supra,
87 Cal.App.5th at p. 1266[.])” (Berry-Vierwinden, supra, 97 Cal.App.5th at pp. 932-933;
see also People v. Reyes (2023) 14 Cal.5th 981, 991-992 [endorsing Powell’s
identification and discussion of the elements of direct aiding and abetting of implied
malice murder].)
7
Defendant here relies on this same chain of reasoning, particularly Langi as it
similarly involved a second degree murder conviction assertedly obtained on grounds of
imputed implied malice based on similar aiding and abetting instructions given there and
here, instead of direct aiding and abetting under those instructions. (CALCRIM No. 401;
see Langi, supra, 73 Cal.App.5th at p. 981, 983 [former CALJIC No. 3.01, which court
recognized as effectively “identical in relevant substance” to CALCRIM No. 401]; cf.
Maldonado, supra, 87 Cal.App.5th at pp. 1264-1267 [acknowledging jury there “was not
required to construe the instructions in [a] manner” suggesting conviction based on
implied malice, but finding § 1172.6 resentencing eligibility remained open because jury
“could have reasonably” done so].)
Berry-Vierwinden highlighted the flaw in Langi’s and Maldonado’s shared
analysis by first hearkening back to the seminal high court decision in People v. McCoy
(2001) 25 Cal.4th 1111 (McCoy). The appellate court explained: “As we noted in Flores,
the Supreme Court’s 2001 decision in McCoy made ‘clear . . . that “when guilt does not
depend on the natural and probable consequences doctrine, . . . the aider and abettor must
know and share the murderous intent of the actual perpetrator.” ’ (Flores, supra,
96 Cal.App.5th at p. 1173 & fn. 4 . . . [quoting McCoy . . . ]; see also Burns, supra,
95 Cal.App.5th at p. 868 . . . [‘The Supreme Court’s McCoy decision . . . made clear that
the direct perpetrator’s mental state could not be imputed to an aider and abettor, whose
mental state had to be independently evaluated.’].) After the Supreme Court’s 2001
decision in McCoy, it was unmistakable that a direct aider and abettor’s ‘mental state is
8
her own; she is liable for her mens rea, not the other person’s.’ ” (Berry-Vierwinden,
supra, 97 Cal.App.5th at p. 935.)
The Berry-Vierwinden court continued: “By arguing that the jury instructions
allowed the jury to convict him as a direct aider and abettor of murder on an imputed
malice theory, Berry-Vierwinden is necessarily asserting that they were erroneous under
the law in effect at the time of his 2010 trial and subsequent direct appeal. Under Burns
and Flores, however, a section 1172.6 petitioner cannot establish a prima facie case for
relief by asserting that the jury instructions permitted conviction on a theory of imputed
malice that was already prohibited even before the enactment of Senate Bill No. 1437.
This amounts to ‘a routine claim of instructional error’ that ‘could have been raised on
appeal from the judgment of conviction.’ (Flores, supra, 96 Cal.App.5th at p. 1173[.])
‘Section 1172.6 does not create a right to a second appeal, and [Berry-Vierwinden]
cannot use it to resurrect a claim that should have been raised in his [direct] appeal.’
(Burns, supra, 95 Cal.App.5th at p. 865 . . .; see also . . . People v. Farfan[, supra,] 71
Cal.App.5th 942, 947 . . . [section 1172.6 ‘does not afford the petitioner a new
opportunity to raise claims of trial error’].)” (Berry-Vierwinden, supra, 97 Cal.App.5th at
p. 936.)
Finally, Berry-Vierwinden explained: “To the extent Maldonado and Langi can be
read to suggest that such an instructional error may be asserted as a basis for section
1172.6 relief—even if the alleged error could have been raised on direct appeal under
then-existing law not changed by Senate Bill No. 1437—we disagree for two reasons.
First, such a result would be inconsistent with our decisions in Burns and Flores.
9
Second, as we noted in those cases, the courts in Maldonado and Langi did not consider
the language of section 1172.6, subdivision (a)(3) requiring that defendants show they
can no longer be convicted of murder ‘because of changes’ made by Senate Bill
No. 1437. (Burns, supra, 95 Cal.App.5th at p. 868, fn. 7 . . .; Flores, supra, 96
Cal.App.5th at p. 1174[.])” (Berry-Vierwinden, supra, 97 Cal.App.5th at p. 936.)
We find this reasoning persuasive, including because the Berry-Vierwinden line of
cases postdated the enactment of Senate Bill No. 775 and found nothing in it to support a
contrary conclusion. We therefore reject defendant’s reliance on Maldonado and Langi.
Defendant’s further arguments asserting error in the trial court’s prima facie
decision are also without merit. Defendant suggests that “[i]f anything, the instructions
in this case were more flawed than those in Langi,” pointing to CALCRIM No. 400.
Defendant suggests authorization of a finding of imputed malice lurked in the
instruction’s language that stated, without further elaboration: “Under some specific
circumstances, if the evidence establishes aiding and abetting of one crime, a person may
also be found guilty of other crimes that occurred during the commission of the first
crime.” People v. Estrada (2022) 77 Cal.App.5th 941, 946-948, rejected this contention
in light of the other instructions given to the jury, which were likewise given here
error that predated Senate Bill Nos. 1437 and 775 would still falter under Berry-
Vierwinden et al., as discussed.
Finally, defendant’s invocation of the rule of lenity (see People v. Manzo (2012)
53 Cal.4th 880, 889) also fails, premised as it is on grounds of alleged ambiguity arising
10
with the broad language concerning imputed malice added to section 1172.6 by Senate
Bill No. 775. That language, as discussed, did not alter the requirement that a defendant’s
eligibility for resentencing relief still must arise after that enactment “because of”
changes to the law of murder. (§ 1172.6, subd. (a)(3).) That was not the case here.
DISPOSITION
The trial court’s ruling denying defendant’s second resentencing petition under
section 1172.6 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
RAPHAEL J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant cannot use a section 1172.6 petition to challenge jury instructions on the basis of imputed malice if the alleged error existed under the law prior to the enactment of Senate Bill No. 1437, as such claims must be raised on direct appeal.
Issues
Whether the trial court erred in denying a section 1172.6 petition at the prima facie stage based on alleged instructional error regarding aiding and abetting.
Whether Senate Bill No. 775 expanded section 1172.6 to allow challenges to jury instructions that were already erroneous under pre-existing law.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“a section 1172.6 petitioner cannot establish a prima facie case for relief by asserting that the jury instructions permitted conviction on a theory of imputed malice that was already prohibited even before the enactment of Senate Bill No. 1437.”