People v. Maldonado ( 2023 )

Filed 1/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A161817
Plaintiff and Respondent,
v. (San Mateo County
Super. Ct. No. SC065313A)
REYNALDO MALDONADO,
Defendant and Appellant.
Reynaldo Maldonado (appellant) appeals from the trial court’s denial of
his petition for resentencing pursuant to Penal Code section 1172.6 (former
section 1170.95). 1 In 2013, appellant was convicted of first degree murder
and the jury was not instructed on the natural and probable consequences
and felony murder doctrines. Appellant argues the jury nonetheless could
have imputed malice to him based solely on his participation in a crime,
relying on the jury instructions for aiding and abetting, implied malice, and
lying-in-wait murder, and on the analysis in People v. Langi (2022)
73 Cal.App.5th 972 (Langi). We agree appellant has established a prima
1All undesignated section references are to the Penal Code.
Section 1170.95 was renumbered section 1172.6, without substantive change,
effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) For clarity, we will refer
to the section by its current numbering.
1
facie case for resentencing relief, and reverse and remand for the trial court
to issue an order to show cause.
BACKGROUND
2013 Conviction
In 2001, about 10:00 a.m. on the morning of the murder, Erick Morales
and the victim were seen walking away from the high school they both
attended. (People v. Maldonado (July 29, 2016, A141242) [nonpub. opn.].)
That afternoon, the victim’s body was found in a storage locker with multiple
stab wounds to the chest and neck. (Ibid.) Appellant called the police and
anonymously reported witnessing the killing; when subsequently interviewed
by police he reported seeing a man with blood on his chest who may have
been the killer. (Ibid.) Police were later unable to locate appellant, who
apparently left the state a few weeks after the murder. (Ibid.)
In the following years, appellant told one person he lured the victim
away and stabbed him with the help of a friend; he told another person the
killing was a friend’s idea and the friend stabbed the victim with appellant’s
help. (People v. Maldonado, supra, A141242.) He told both people that he
and his friend buried their bloody clothes and the knife in their yard, and
that he had a photograph of his friend with the victim’s body. (Ibid.) Police
found a sweatshirt, knife, and cell phone buried in the yard of appellant’s
former residence, and found a photograph of Morales with the victim’s body
in appellant’s residence at the time of his arrest. (Ibid.) Appellant testified
at trial that he did not kill the victim or help Morales kill the victim, but that
Morales brought him to the victim’s body after the killing and appellant took
a photograph and helped Morales bury the evidence. (Ibid.)
Appellant was charged with first degree murder (§ 187, subd. (a)), with
a special circumstance allegation that the murder was committed by means
2
of lying in wait (§ 190.2, subd. (a)(15)). The jury was instructed on two
theories of first degree murder: the murder was willful, deliberate and
premeditated; and the murder was committed by lying in wait. The jury was
also instructed on direct aiding and abetting. (See CALCRIM No. 401.) The
jury was not instructed on felony murder or the natural and probable
consequences doctrine.
The jury convicted appellant of first degree murder, but found the
lying-in-wait special circumstance not true. This court affirmed the
judgment. (People v. Maldonado, supra, A141242.)
2020 Resentencing Petition
In September 2020, appellant filed a petition for resentencing pursuant
to section 1172.6. The trial court appointed counsel for appellant. The
People filed an opposition, submitting the jury instructions and verdict forms
from appellant’s trial and this court’s opinion on direct appeal. The trial
court summarily denied the petition, finding the record conclusively proved
appellant’s murder conviction was not obtained under a felony murder or
natural and probable consequences theory.
DISCUSSION
I. Section 1172.6
In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437),
effective January 1, 2019, the Legislature “eliminated natural and probable
consequences liability for murder as it applies to aiding and abetting, and
limited the scope of the felony-murder rule.” (People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) “Senate Bill 1437 also created a special
procedural mechanism for those convicted under the former law to seek
retroactive relief under the law as amended. (See Pen. Code, § 1172.6 ....)
Under newly enacted section 1172.6, the process begins with the filing of a
3
petition containing a declaration that all requirements for eligibility are met
(id., subd. (b)(1)(A)), including that ‘[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to [Penal Code]
Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 (§ 1172.6, subd. (a)(3)).” (People v. Strong (2022) 13 Cal.5th
698, 708, fn. omitted.)
While this appeal was pending, the Governor signed into law Senate
Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), which “expanded the
scope of those changes to encompass, among other things, murder convictions
‘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.’ ” (Langi, supra, 73 Cal.App.5th at p. 978; see
Stats. 2021, ch. 551, § 2.) 2 The Senate Bill 775 amendments apply to
appellant’s appeal. (See People v. Porter (2022) 73 Cal.App.5th 644, 652
[“[T]he trial court’s order denying the petition is not yet final and Senate Bill
No. 775 has already taken effect. Therefore, the revisions set forth in Senate
Bill No. 775 apply to the instant petition.”]; People v. Montes (2021)
71 Cal.App.5th 1001, 1006 [“New legislation generally applies to all
judgments which are not final as of the effective date of the new statute.”].)
Section 1172.6, subdivision (c), provides that if a resentencing petition
includes the required components, the court must “determine whether the
petitioner has made a prima facie case for relief.” “While the trial court may
look at the record of conviction ... to determine whether a petitioner has made
a prima facie case for section [1172.6] relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas
2 We grant appellant’s unopposed request for judicial notice of a
legislative analysis of Senate Bill 775.
4
corpus proceedings, ‘ “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.” ’ [Citation.] ‘[A] court should not
reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citation.] ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at
p. 971.) “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.’ [Citation.] ... [T]he ‘prima
facie bar was intentionally and correctly set very low.’ ” (Id. at p. 972.)
If the court determines the petitioner made a prima facie case for relief,
“the court shall issue an order to show cause” and “hold a hearing to
determine whether to vacate the murder, attempted murder, or
manslaughter conviction ....” (§ 1172.6, subds. (c), (d)(1).)
II. Prima Facie Case
Appellant argues that, even though the jury was not instructed on the
felony murder or natural and probable consequences doctrines, he may
nonetheless have been convicted on a theory under which malice was
imputed to him based solely on his participation in a crime. Specifically,
appellant points to the instructions for aiding and abetting a lying-in-wait
murder. We will first discuss the crime of aiding and abetting a lying-in-wait
murder, and then turn to the jury instructions given in appellant’s case.
5
A. Aiding and Abetting Lying-In-Wait Murder
“To prove first degree murder of any kind, the prosecution must first
establish a murder within section 187—that is, an unlawful killing with
malice aforethought. [Citations.] Thereafter, pursuant to section 189, the
prosecution must prove the murder was perpetrated by one of the specified
statutory means, including lying in wait ....” (People v. Stanley (1995)
10 Cal.4th 764, 794 (Stanley).) To prove the murder was perpetrated by
means of lying in wait, the prosecution must prove “ ‘ “ ‘(1) a concealment of
purpose, (2) a substantial period of watching and waiting for an opportune
time to act, and (3) immediately thereafter, a surprise attack on an
unsuspecting victim from a position of advantage....’ ” ’ ” (People v. Russell
(2010) 50 Cal.4th 1228, 1244.) “[T]he lying in wait need not continue for any
particular period of time provided that its duration is such as to show a state
of mind equivalent to premeditation or deliberation.” (People v. Stevens
(2007) 41 Cal.4th 182, 202, fn. 11.)
Unlike first degree premeditated murder, “nothing in section 189
requires the lying in wait to have been done with the intent to kill.” (People
v. Laws (1993) 12 Cal.App.4th 786, 794 (Laws).) Instead, “If the act which
the perpetrator intends to commit while lying in wait results in a killing
which satisfies the elements of murder, it is immaterial whether the
perpetrator intended to kill ....” (Id. at p. 795.) 3 “Ordinarily, ... [an implied
3 In contrast, “ ‘The lying-in-wait special circumstance requires “an
intentional murder, committed under circumstances which include (1) a
concealment of purpose, (2) a substantial period of watching and waiting for
an opportune time to act, and (3) immediately thereafter, a surprise attack on
an unsuspecting victim from a position of advantage....” ’ ” (People v. Cage
(2015) 62 Cal.4th 256, 278, italics added (Cage).) Because the jury found the
special circumstance lying-in-wait allegation not true, it did not necessarily
find appellant intended to kill the victim.
6
malice] killing would be murder of the second degree. However, if this
murder is perpetrated by means of lying in wait, it is, by statutory definition,
murder of the first degree.” (Id. at p. 794.) 4 “All that is required of lying in
wait is that the perpetrator exhibit a state of mind equivalent to, but not
identical to, premeditation and deliberation. [Citation.] This state of mind
simply is the intent to watch and wait for the purpose of gaining advantage
and taking the victim unawares in order to facilitate the act which
constitutes murder. [Citation.] It does not include the intent to kill ....” (Id.
at p. 795.)
We turn now to aiding and abetting an implied malice murder.
“[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 life
endangering 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
4 “The Legislature could have concluded that an unlawful killing of a
human being with implied malice aforethought (i.e., an unintended killing
which results from an intentional act inherently dangerous to human life
committed with knowledge of the danger to, and with conscious disregard for,
human life [citation]) is more deplorable than second degree murder when it
is perpetrated by means of lying in wait.” (Laws, supra, 12 Cal.App.4th at
p. 793; see also Stanley, supra, 10 Cal.4th at p. 795 [“ ‘Murder committed by
lying in wait has been “anciently regarded ... as a particularly heinous and
repugnant crime.” [Citation.]’ [Citation.] The moral culpability of the
offender who murders by lying in wait justifies fixing the murder in the first
degree.”].)
7
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. Powell (2021)
63 Cal.App.5th 689, 712–713, fn. omitted (Powell).) Direct aiding and
abetting an implied malice murder remains a valid theory after the
amendments of Senate Bills 1437 and 775. (People v. Gentile (2020)
10 Cal.5th 830, 850 [“[N]otwithstanding Senate Bill 1437’s elimination of
natural and probable consequences liability for second degree murder, an
aider and abettor who does not expressly intend to aid a killing can still be
convicted of second degree murder if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard for life.”].)
B. The Jury Instructions Permitted Conviction Based on Imputed
Malice
We now turn to whether the jury instructions permitted conviction
based on an impermissible theory of imputed malice.
The jury was instructed, with respect to malice, “There are two kinds of
malice aforethought, express malice and implied malice. Proof of either is
sufficient to establish the state of mind required for murder. The defendant
acted with express malice if he unlawfully intended to kill. The defendant
acted with implied malice if: [¶] One, he intentionally committed an act; [¶]
Two, the natural and probable consequences of that act were dangerous to
human life; [¶] Three, at the time he acted he knew his act was dangerous to
human life; [¶] And, Four, he deliberately acted with conscious disregard for
human life.” (See CALCRIM No. 520.)
As to lying in wait murder, the jury was instructed: “The defendant
murdered by lying in wait if: [¶] One, he concealed his purpose from the
person killed; [¶] Two, he waited and watched for an opportunity to act; [¶]
8
And, Three, then from a position of advantage he intended to and did make a
surprise attack on the person killed. [¶] The lying in wait does not need to
continue for any particular period of time, but its duration must be
substantial enough to show a state of mind equivalent to deliberation or
premeditation;” “Deliberation means carefully weighing the considerations
for and against the choice, and knowing the consequences deciding to act. An
act is done with premeditation if the decision to commit the act is made
before the act is done. A person can conceal his or her purpose even if the
person killed is aware of the person’s physical presence. The concealment
can be accomplished by ambush or some other secret plan.” (See CALCRIM
No. 521.)
Finally, on aiding and abetting, the jury was instructed pursuant to
CALCRIM No. 401: “To prove that the defendant is guilty of a crime based on
aiding and abetting that crime, the People must prove that: [¶] Number One,
the perpetrator committed the crime; [¶] Two, the defendant knew the
perpetrator intended to commit the crime; [¶] Three, before or during the
commission of the crime the defendant intended to aid and abet the
perpetrator in committing the crime; [¶] And, Four, the defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶]
Someone aids and abets a crime if he or she knows the perpetrator’s unlawful
purpose and he or she specifically intends to and does in fact aid, facilitate,
promote, encourage or instigate the perpetrator’s commission of that crime.
If all of these requirements are proved the defendant does not need to
actually have been present when the crime was committed to be guilty as an
aider and abettor.”
In Powell, the Court of Appeal determined that CALCRIM No. 401, the
same aiding and abetting instruction used here, was “not tailored for” aiding
9
and abetting an implied malice murder. (Powell, supra, 63 Cal.App.5th at
p. 714.) Specifically, while CALCRIM No. 401 refers to an intent to aid and
abet a “crime,” the aider and abettor in fact needs to “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, supra, 73 Cal.App.5th 972, the Court of Appeal found this
poor tailoring left open the possibility that the jury convicted the defendant
based on a theory of imputed malice. In Langi, the defendant and others beat
up the victim, who died after a punch caused him to fall and hit his head.
(Id. at p. 975.) The jury was given a CALJIC instruction “identical in
relevant substance” to “[t]he standard aiding-and-abetting instruction given
in Powell” and here, CALCRIM No. 401. (Langi, at p. 983.) 5 As here, the
jury was not instructed on the natural and probable consequences doctrine.
(Id. at p. 981.) Langi noted the aiding and abetting instruction “does not
state that the aider and abettor must himself have known that the act he
aided was life-threatening, or that he must himself have acted with
indifference to human life.” (Id. at p. 982.) The court agreed with Powell’s
conclusion that “the standard aiding-and-abetting instructions are ill suited
to the crime of second degree murder. If, as here, a trial court uses such an
instruction without tailoring it to the specifics of that crime, the instruction
5 In Langi, the jury was instructed with CALJIC No. 3.01 as follows:
“ ‘A person aids and abets the commission ... of 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 or encouraging or facilitating
the commission of the crime, ... [¶] (3) By act or advice aids, promotes,
encourages or instigates the commission of the crime.’ ” (Langi, supra,
73 Cal.App.5th at p. 981.)
10
creates an ambiguity under which the jury may find the defendant guilty of
aiding and abetting second degree murder without finding that he personally
acted with malice.” (Langi, at p. 982.)
Langi concluded the jury instructions permitted the appellant to be
convicted of aiding and abetting second degree murder without a finding that
he acted with conscious disregard for human life: “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, as noted above, the
second degree murder instruction specified that the direct perpetrator of that
crime need not act with the unlawful intent of causing death. 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. 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. Thus, under the instructions that were given, the jury
was entitled to conclude that, to be guilty as an aider and abettor of second
degree murder, appellant need only have intended to encourage the
perpetrator’s intentional act—in this case, punching [the victim]—whether or
11
not appellant intended to aid or encourage [the victim’s] killing, and whether
or not he personally knew of and disregarded the risk of such a killing.”
(Langi, supra, 73 Cal.App.5th at pp. 982–983.)
Here, the jury was instructed that a person aids and abets a crime if
“he or she knows the perpetrator’s unlawful purpose and he or she
specifically intends to and does in fact aid, facilitate, promote, encourage or
instigate the perpetrator’s commission of that crime.” The murder by lying in
wait instruction did not instruct the jury that the perpetrator needed to
intend to cause death. While the perpetrator must have concealed his
purpose from the victim, waited and watched for an opportunity to act,
intentionally made a surprise attack from a position of advantage, and have
lain in wait for a substantial enough duration to show a state of mind
equivalent to deliberation or premeditation, the jury may have found the
perpetrator’s purpose was only to injure or intimidate the victim in a surprise
attack. Thus, using Langi’s reasoning, the jury could have construed the
instructions such that, “to be guilty as an aider and abettor of [lying in wait
first degree] murder, appellant need only have intended to encourage the
perpetrator’s intentional act—in this case, [a surprise attack on the victim]—
whether or not appellant intended to aid or encourage [the victim’s] killing,
and whether or not he personally knew of and disregarded the risk of such a
killing.” (Langi, supra, 73 Cal.App.5th at p. 983.)
We emphasize the jury was not required to construe the instructions in
this manner. The jury could have construed the instructions as requiring the
aider and abettor know the perpetrator intended to commit the act and know
the perpetrator acted with implied malice—in other words, know the
perpetrator knew the act was dangerous to human life and deliberately
disregarded the risk to life. Thus, the jury could have construed the
12
instructions as requiring that, to be guilty of aiding and abetting an implied
malice lying in wait murder, appellant must have intended to encourage both
the act and the perpetrator’s deliberate disregard that the act was dangerous
to human life and, in so doing, appellant acted with implied malice.
However, the jury also could have reasonably construed the instructions in a
manner permitting it to convict appellant under a theory of imputed malice.
The People argue Powell and Langi are distinguishable because the
convictions in those cases were for second degree murder, while appellant
was convicted of first degree murder. The distinction is immaterial because,
as explained above, first degree lying-in-wait murder can be based on a
theory that the perpetrator acted with implied malice rather than an intent
to kill. Powell and Langi’s analyses of the standard instructions for aiding
and abetting an implied malice murder apply here.
The People also argue a finding that appellant knew of the
perpetrator’s intent to conduct a surprise attack and intended to aid that
purpose “demonstrated the necessary conscious disregard for human life
required for implied malice ....” We are not persuaded that a finding
appellant knew the perpetrator planned to make a surprise attack and
intended to aid such an attack is necessarily equivalent to a finding that
appellant knew the surprise attack was dangerous to human life and acted
with conscious disregard for life. 6
6 We note the Supreme Court has stated, “ ‘[M]urder … “by means of”
lying in wait … requires ... a wanton and reckless intent to inflict injury
likely to cause death.’ ” (Cage, supra, 62 Cal.4th at p. 278; but see Laws,
supra, 12 Cal.App.4th at p. 795, fn. 2 [characterizing similar statements as
“dictum”].) However, the jury instructions provided in this case set forth no
such intent requirement.
13
The People further contend the instructions required the jury to find
that appellant “knew the perpetrator’s intent to at a minimum perpetrate a
lying-in-wait attack with implied malice and a state of mind equivalent to
deliberation or premeditation ....” The instructions given to the jury do not so
require. 7 The jury was instructed an aider and abettor must “kn[o]w the
perpetrator intended to commit the crime” and intend to aid “the
perpetrator’s unlawful purpose.” For implied malice lying-in-wait murder the
only intentions required of the perpetrator were (1) the intent to commit an
act (while knowing the act was dangerous to human life and acting with
conscious disregard for life), and (2) the intent to make a surprise attack.
The instructions do not specify that the perpetrator must have intended that
the duration of the lying in wait be substantial enough to show a state of
mind equivalent to deliberation or premeditation, but just that the duration
in fact was so substantial.
C. There Is a Reasonable Likelihood the Jury Construed the
Instructions to Permit Conviction Based on Imputed Malice
For the first time in a petition for rehearing, the People rely on Boyde v.
California (1990) 494 U.S. 370 (Boyde) to argue that we must decide whether
there is a reasonable likelihood the jury construed the instructions to permit
conviction under a prohibited theory, and to further argue there is no such
reasonable likelihood here. We requested appellant file a response, granted
rehearing, and now reject the People’s argument.
As an initial matter, the contention is forfeited. “ ‘It is well settled that
arguments ... cannot be raised for the first time in a petition for rehearing.’ ”
7Whether such knowledge is an element of aiding and abetting a lying-
in-wait murder is not before us, and we express no opinion on the matter.
14
(Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092, abrogated on another
ground by Martinez v. Combs (2010) 49 Cal.4th 35.)
In any event, assuming the reasonable likelihood standard applies, it is
met here. 8 “Although a defendant need not establish that the jury was more
likely than not to have been impermissibly” directed by the ambiguous
instruction, the standard is not met if there is “only a possibility” the jury
was so directed. (Boyde, supra, 494 U.S. at p. 380.) The People do not
dispute the ambiguity of the instructions, or argue other instructions clarify
the ambiguity. Instead, the People point solely to three discrete statements
in the prosecutor’s closing argument: to convict appellant as an aider and
abettor, appellant “needs to know that Morales intended to commit that
murder;” appellant “was either wielding the knife or he was holding the
victim so Mr. Morales could kill him;” and for purposes of implied malice
appellant “knew the act was dangerous to life at the time” and “deliberately
acted with conscious disregard for life.” While these statements urge
conviction based on non-imputed malice, they were three brief statements in
a lengthy closing argument taking up more than 70 pages of the reporter’s
transcript. Given the brevity of these comments and the highly confusing
nature of the instructions, we are persuaded there was more than a
possibility that the jury construed the instructions to permit a conviction
based on imputed malice. (Cf. People v. Williams, supra, 86 Cal.App.5th at
8 Appellant argues the reasonable likelihood standard does not apply to
ambiguous jury instructions for purposes of determining whether a section
1172.6 prima facie showing has been made. Although the reasonable
likelihood standard originated in the direct appeal context, at least two
published cases have applied it in making the section 1172.6 prima facie
determination. (People v. Williams (2022) 86 Cal.App.5th 1244, 1256; People
v. Ervin (2021) 72 Cal.App.5th 90, 107.) We need not, and do not, decide
whether or to what extent the standard applies in section 1172.6 cases.
15
p. 1257] [no reasonable likelihood jury construed aiding and abetting
instruction to permit conviction based on imputed malice because, in light of
other instructions and jury’s true finding as to a special circumstance
requiring the defendant had the intent to kill, “the record of conviction
conclusively demonstrates” the defendant is ineligible for resentencing];
Boyde, supra, 494 U.S. at pp. 378, 383 [no reasonable likelihood jury
construed instruction in capital penalty phase that they could consider
“ ‘[a]ny other circumstance which extenuates the gravity of the crime’ ” to
limit their consideration to “evidence that was related to the crime,” excluding
non-crime-related mitigation evidence, in light of other instructions and the
fact that “[a]ll of the defense evidence presented at the penalty phase—four
days of testimony consuming over 400 pages of trial transcript—related to
petitioner’s background and character, and we think it unlikely that
reasonable jurors would believe the court’s instructions transformed all of
this ‘favorable testimony into a virtual charade’ ”].)
The ultimate question before us is whether “ ‘the record, including the
court’s own documents, “contain[s] facts refuting the allegations made in the
[section 1172.6] petition.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) Only “[i]f
the petition and record in the case establish conclusively that the defendant is
ineligible for relief” may the trial court dismiss the petition. (People v.
Strong, supra, 13 Cal.5th at p. 708, italics added.) Here, given the ambiguous
jury instructions, and after considering the prosecutor’s closing argument, we
cannot say the record conclusively establishes appellant is ineligible for relief.
Accordingly, “an evidentiary hearing is required. At that hearing, the
court may find that appellant was the actual killer or that he was an aider
and abettor who facilitated the killing with personal disregard for human life,
in which case his petition will be denied. If the prosecution fails to prove that
16
he was either, he will be entitled to relief.” (Langi, supra, 73 Cal.App.5th at
p. 984.)
DISPOSITION
The order denying the petition is reversed. The matter is remanded
with directions to issue an order to show cause and hold an evidentiary
hearing.
SIMONS, Acting P.J.
We concur.
BURNS, J.
WISEMAN, J. *
(A161817)
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17
People v. Maldonado (A161817)
Trial Judge: Hon. Robert D. Foiles
Trial Court: San Mateo County Superior Court
Attorneys:
Scott N. Cameron, Attorney at Law, under appointment by the
First District Appellate Project, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Seth K. Schalit, Supervising Deputy
Attorney General, and Lisa Ashley Ott, Deputy Attorney General, for
Plaintiff and Respondent.
18