People v. Navarro CA1/2

Filed 4/26/23 P. v. Navarro CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A164083

v. (Contra Costa County JACOBO NAVARRO, Super. Ct. No. 05-040171-1) Defendant and Appellant.

Jacobo Navarro was convicted of second degree murder with a gun use enhancement and sentenced to 25 years to life. We affirmed his conviction in 2006. The evidence at trial indicated that Navarro and a man to whom he was related (Rubio) went together in Navarro’s vehicle to a housing complex where others they knew lived and were hanging around outside. Rubio told Navarro to open the trunk and give him a gun, and Navarro said something to the effect that Rubio should take the gun only if he was going to use it. An individual they knew told them he didn’t want any trouble, and they closed the trunk and left the area for a brief period. They returned, each with a gun, and Rubio, followed by Navarro at a distance of about 10 feet, went over to where a man was working on his car. Rubio shot the man multiple times in the torso and limbs and killed him. Navarro was standing by with a gun

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in his waistband and his hand on the gun. After the shooting, they returned to the car and Navarro drove himself and Rubio away. Rubio absconded, and Navarro was charged with first degree murder. At the conclusion of the evidence, the trial court instructed the jury on aiding and abetting first and second degree murder, with the latter being on an implied malice theory. The jury was also instructed on second degree murder under the natural and probable consequences theory based on assault with a firearm and on an enhancement for use of a firearm. In 2019, Rubio sought resentencing under Senate Bill No. 1437 (2021– 2022 Reg. Sess.) (Pen. Code, § 1172.6.) The trial court initially appointed counsel, who briefed the issues, and then denied the petition without issuing an order to show cause (OSC). We reversed and remanded holding the trial court erred in failing to issue an OSC and hold an evidentiary hearing before resolving factual issues that were not conclusively resolved by the record of conviction, citing our earlier decision in People v. Duchine (2021) 60 Cal.App.5th 798, 815-816. On remand, the trial court issued an OSC and applied the “beyond a reasonable doubt” standard to the record of conviction relying “exclusively on the evidence presented at trial.”1 The court rejected petitioner’s argument that his acquittal on the first degree murder charge did not permit the court to allow the second degree murder conviction to stand because an aider and abettor cannot be liable for second degree murder under a theory of implied malice. Citing People v. Powell (2021) 63 Cal.App.5th 689, People v. Gentile (2020) 10 Cal.5th 830, and several other cases, all of which recognize that although Senate Bill No. 1437 (2021–2022 Reg. Sess.) eliminated the natural