People v. Jaramillo CA2/4 ( 2023 )

Filed 4/5/23 P. v. Jaramillo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B318189
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA087356)
v.
MANUEL LOUIS JARAMILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Joseph R. Porras, Judge. Affirmed.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivan and Eric J. Kohm, Deputy Attorneys
General, for Plaintiff and Respondent.
Manuel Jaramillo appeals from the superior court’s denial
of his petition for resentencing pursuant to Penal Code section
1172.6 (former section 1170.95).1 Appellant contends his
convictions for murder and attempted murder must be reversed
because his jury was instructed on the kill zone theory, did not
specifically find that he was the actual killer, and may have
convicted him as an aider and abettor. He requests that we treat
his opening brief as a writ petition and reach his kill zone
arguments despite his failure to present them below. We deny
the request and affirm the order of the superior court.
BACKGROUND
I. Conviction and Direct Appeal
An information filed in September 2006 charged appellant
with one count of murder (Pen. Code, § 187, subd. (a))2 and four
counts of attempted willful, deliberate, and premeditated murder
(§§ 187, subd. (a), 664) stemming from a 2004 shooting incident
at a tattoo parlor.3 The information alleged the crimes were
committed for the benefit of, at the direction of, and in
association with a criminal street gang, with the specific intent to
promote, further and assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)(C)), and that a principal personally and
1 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. We hereafter
refer to the statute as section 1172.6.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 At appellant’s unopposed request, we took judicial notice of
the appellate record from appellant’s direct appeal, Case No.
B210249.
2
intentionally discharged a firearm and proximately caused great
bodily injury and death (§ 12022.53, subds. (b)-(e)(1)).
Appellant proceeded to jury trial in 2008. The trial court
instructed appellant’s jury with modified CALJIC pattern
instructions on aiding and abetting principles (CALJIC Nos. 3.01,
3.03), attempted murder (CALJIC No. 8.66), and the kill zone
theory of concurrent intent (CALJIC No. 8.66.1). The court did
not instruct the jury on the natural and probable consequences or
felony murder doctrines.
During closing argument, the prosecutor asserted, in
accordance with the jury instructions, that aiders and abettors
act “with knowledge of criminal purpose, and with the intent to
assist the crime in question.” He argued that appellant was
either the actual killer or a direct aider and abettor, and was
guilty of murder and attempted murder under either theory. The
prosecutor said several times that it “doesn’t matter” whether
appellant was the actual shooter, though he contended appellant
was. The prosecutor briefly mentioned the kill zone theory, as
“[a]nother way to consider attempted murder.”
The jury found appellant guilty of second degree murder
and all four counts of attempted murder. The jury found all gang
and firearm enhancements true, but found untrue the allegations
that the attempted murders were willful, deliberate, and
premeditated. The trial court sentenced appellant to 15 years to
life on the murder count, plus 25 years to life for the related
firearm enhancement. It imposed concurrent sentences of seven
years plus 25 years to life for each of the attempted murder
counts and related firearm enhancements.
On direct appeal, we rejected appellant’s contentions that
the evidence was insufficient to support his convictions and his
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trial counsel rendered ineffective assistance by failing to object to
the kill zone instruction or the prosecutor’s argument relating
thereto. Citing “the motive for the shooting, the layout of the
location of the shooting, the rapid fire, and the number of shots
fired,” we concluded that “the jury reasonably found that
appellant had the specific intent to kill everyone in the parlor.”
(People v. Jaramillo (Feb. 22, 2010, No. B210249) [nonpub. opn.].)
We further held that the kill zone instruction “was appropriate,
[such that] appellant’s trial counsel had no cause to object,” and
the prosecutor “correctly informed the jury that ‘the nature of
[appellant’s] attack [was] such that it [was] reasonable to infer
that [he] intended to kill everyone in a particular location as the
means to some other end, e.g., killing some particular person.’”
(Ibid.)
We alternatively concluded that appellant could not
establish prejudice due to his counsel’s failure to object to the
prosecutor’s argument, because the “record makes clear that the
jury either did not remember or understand the gist of the
prosecutor’s argument on the subject.” Specifically, the jury
asked the court if it could “‘have the closing statement of the
prosecutor read back to us so that we can have an easier
understanding of what the law says,’” and the court responded,
“‘Argument of counsel is not evidence. The law is contained in
the jury instructions which you have.’” (Ibid.) We affirmed
appellant’s convictions but modified the judgment to correct the
number of custody credits to which appellant was entitled. (See
id.)
II. Section 1172.6 Proceedings
On April 2, 2019, appellant, in propria persona, filed a
petition for resentencing under section 1172.6. In his non-
4
standardized petition, appellant expressed remorse and regret for
“what has happened” and asserted he could no longer be
convicted of murder4 under recent changes to the law. He further
asked the court to strike the firearm enhancements and appoint
counsel to assist him with his petition.
On May 16, 2019, the prosecution filed an opposition to
appellant’s petition, arguing that section 1172.6 was
unconstitutional. On May 20, 2019, the superior court referred
the matter to the public defender’s office. On July 19, 2019, the
court appointed a bar panel attorney to represent appellant. The
matter subsequently was continued.
On January 6, 2020, the prosecution filed a substantive
opposition to appellant’s petition. It contended appellant was
ineligible for relief because the record, consisting of “the court
minutes, the opinion of the court of appeals, the trial transcript,
and the jury instructions,” showed appellant was not convicted
under the felony murder or natural and probable consequences
doctrines.
Appellant’s counsel filed a reply in support of the petition
on August 11, 2020. He acknowledged that the “only
theories/questions presented to the jury were that
Petitioner/Defendant was either a shooter, or an ‘aider and
abettor’ to a murder,” and the jury was not instructed on the
4 At the time, section 1172.6 did not mention attempted
murder. (See former § 1170.95, subd. (a).) While appellant’s
petition was pending, the Legislature amended the statute to
expressly include attempted murder convictions. (Sen. Bill No.
775 (2021-2022 Reg. Sess.), Stats. 2021, ch. 551, § 2.) Appellant’s
counsel recognized the amendment in his briefing below, and the
parties address appellant’s convictions for attempted murder in
their appellate briefing.
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felony murder or natural and probable consequences doctrines.
He contended appellant nevertheless was eligible for relief
because the jury did not specifically find that he harbored an
intent to kill. Citing People v. Ramirez (2019) 41 Cal.App.5th 923(Ramirez), he asserted that the absence of such a finding, or one
that appellant was a major participant in the crimes, required
immediate resentencing. He did not mention the kill zone
instruction or People v. Canizales (2019) 7 Cal.5th 591(Canizales), which clarified the limited circumstances in which
the instruction properly may be given.
On September 28, 2020, the prosecution filed a
supplemental response to appellant’s reply. It argued Ramirez
was inapposite and reiterated its contention that appellant was
ineligible for relief due to the lack of instructions on either the
felony murder or natural and probable consequences doctrine.
After several continuances, appellant’s counsel filed a
supplemental reply in support of the petition on December 2,
2021. He again acknowledged that the jury was only instructed
on direct and aiding and abetting liability, but disputed the
prosecution’s assertion that the jury thus necessarily found
appellant was either the shooter or an aider and abettor; he
emphasized that “no separate verdict form” contained such
findings. Appellant’s counsel also asserted that the testimony of
the gang expert “was for the exact, and only, purpose of allowing
a ‘natural and probable consequences theory’ argument regarding
inferences to drawn [sic] from the evidence,” despite the lack of
instruction, and that the prosecutor argued the theory. He did
not mention the kill zone instruction or Canizales.
The superior court heard the petition on January 26, 2022.
At the outset, the court indicated it was inclined to deny the
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petition based on the lack of instructions on the felony murder
and natural and probable consequences doctrines. Appellant’s
counsel argued that instructions were not necessary for the jury
to have relied on those theories. The prosecutor submitted on the
tentative. The court stated that the natural and probable
consequences doctrine had not been argued, and concluded that
appellant failed to make a prima facie case for relief “for the
reasons that we’ve discussed.”
Appellant timely appealed.
DISCUSSION
Appellant argues for the first time on appeal that his
attempted murder convictions rest upon the kill zone theory and
must be reversed as legally unsound under Canizales, supra, 7
Cal.5th 591. He urges this court to “treat the appeal as a habeas
corpus petition, and address this issue on the merits because it is
cognizable on habeas corpus and there is no material dispute as
to the facts.” In the alternative, appellant contends the superior
court erred in denying his petition because the kill zone
instruction enabled the jury to convict him on an implied malice
theory akin to the natural and probable consequences theory, and
the record of conviction does not negate the possibility that his
convictions are legally impermissible.
I. We Do Not Treat the Appeal as a Habeas Petition.
Implicitly conceding that it would be improper to reach the
merits of his belatedly raised kill zone argument in this appeal,
appellant asserts we “can reach the merits of appellant’s claim if
this appeal ‘is treated as a petition for writ of habeas corpus. . . .’”
He contends we should construe his appeal as a habeas petition
because his Canizales claim is cognizable and timely, “there is no
material dispute as to the facts relating to his conviction,” and
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addressing his claims would promote judicial economy. We
decline to exercise our discretion in favor of treating the instant
appeal as a petition for writ of habeas corpus.
“[U]nder unusual circumstances, and . . . where doing so
would serve the interests of judicial economy, an appellate court
may use its discretion to construe an appeal as a petition for writ
of mandate.” (Mon Chong Loong Trading Corp. v. Superior Court
(2013) 218 Cal.App.4th 87, 92 (Mon Chong); see also People v.
Segura (2008) 44 Cal.4th 921, 928 fn. 4 (Segura).) Unusual
circumstances include instances in which failing to treat an
appeal as a writ petition would leave the appellant without an
adequate appellate remedy to challenge an order, those in which
the “issue is a matter of concern to many persons other than
defendant,” and those in which the matter presents a question of
first impression. (Segura, supra, 44 Cal.4th at p. 928 fn. 4; Mon
Chong, supra, 218 Cal.App.4th at p. 92.)
Here, appellant has an adequate appellate remedy: an
order denying relief under section 1172.6 is appealable under
section 1237, subdivision (b) as an order after judgment affecting
a party’s substantial rights. (See Teal v. Superior Court (2014)
60 Cal.4th 595, 598, 601.) This is not a “barred appeal” that
appellate courts may treat as a petition for writ of habeas corpus
to avoid injustice to the appellant. (People v. Jerome (1984) 160
Cal.App.3d 1087, 1095.) Section 1172.6 “does not diminish or
abrogate any rights or remedies otherwise available to the
petitioner.” (§ 1172.6, subd. (f).)
Appellant suggests both that the Canizales issues he seeks
to raise present novel questions of first impression and that
“established precedent” mandates reversal of his attempted
murder convictions. Under either scenario, construing this
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appeal from an appealable order as a writ petition is not
necessary. Indeed, in a case presenting what appellant
characterizes as “a procedural scenario similar to the one
presented here,” counsel appointed to represent the appellant in
a section 1172.6 appeal filed a separate petition for writ of habeas
corpus to advance the appellant’s Canizales arguments. (See In
re Sambrano (2022) 79 Cal.App.5th 724, 729-730.) It is unclear
why such a petition was not filed here, either by appellant in
propria persona or by counsel on his behalf.
Moreover, even if we were inclined to consider the appeal
as a habeas corpus petition, “[i]t has long been the law in
California that, while a Court of Appeal may have original
jurisdiction in a habeas corpus proceeding, it has the discretion to
deny a petition without prejudice if it has not been first presented
to the trial court.” (See In re Kler (2010) 188 Cal.App.4th 1399,
1403; see also Robinson v. Lewis (2020) 9 Cal.5th 883, 895.)
“Petitioners should first file a petition for a writ of habeas corpus
challenging a judgment in the superior court that rendered the
judgment. If the superior court denies the petition, the petitioner
may then file a new petition in the Court of Appeal. The superior
court that rendered the judgment is best equipped to consider the
claim in the first instance, to hold an evidentiary hearing when
necessary, and to grant relief if appropriate.” (Robinson v. Lewis,
supra, 9 Cal.5th at p. 895.) Aside from emphasizing the
importance of “judicial economy,” appellant offers no explanation
as to why it would be appropriate to deviate from this norm here.
The interest of judicial economy does not outweigh the benefits of
permitting the superior court the opportunity to consider
appellant’s arguments (and respondent’s oppositions thereto) in
the first instance. Appellant may raise his Canizales arguments
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via a habeas petition in the superior court; we decline to consider
them here.
II. The Superior Court Properly Denied the Section
1172.6 Petition.
As an alternative to his primary Canizales arguments,
appellant contends he is entitled to an evidentiary hearing on the
attempted murder convictions because “the kill zone instructions
established a prima facie case for relief” and “the prosecutor
essentially argued for conviction under the natural and probable
consequences doctrine.” With respect to the murder conviction,
he contends he is entitled to an evidentiary hearing because the
jury did not expressly find that he was the actual killer. We
disagree under any standard of review.
Section 1172.6, subdivision (a) authorizes resentencing of
persons convicted of “felony murder or 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, attempted murder under the natural
and probable consequences doctrine, or manslaughter” where
certain conditions are met. Among those conditions are the filing
of an information that “allowed the prosecution to proceed under
a theory of felony murder, 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, or attempted murder under the natural
and probable consequences doctrine.” (§ 1172.6, subd. (a)(1).)
By its plain language, the statute twice provides that a
person convicted of attempted murder may be eligible for relief
only where he or she could be or was convicted “under the natural
and probable consequences doctrine.” Appellant conceded both
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here and below that his jury “was not instructed on felony
murder or the natural and probable consequences doctrine.” He
thus could not have been convicted of attempted murder under
such a theory and therefore is ineligible for relief under section
1172.6 on his attempted murder convictions. (People v. Coley
(2022) 77 Cal.App.5th 539, 548.) Regardless of what the
prosecutor argued, the jury had no basis to convict appellant of
attempted murder under the natural and probable consequences
doctrine. Indeed, as we noted in our prior opinion, the record
shows that the trial court expressly instructed the jury that
“‘Argument of counsel is not evidence. The law is contained in
the jury instructions which you have.’” (People v. Jaramillo (Feb.
22, 2010, No. B210249) [nonpub. opn.].) We presume the jury
followed the court’s instructions and did not convict appellant on
theories potentially only asserted during the prosecutor’s
argument. (People v. Chhoun (2021) 11 Cal.5th 1, 30.)
Appellant’s reliance on People v. Langi (2022) 73
Cal.App.5th 972 (Langi) is misplaced. In Langi, the defendant
was convicted of second degree murder in connection with the
beating death of a robbery victim; the victim fell and struck his
head after someone in a group that included the defendant
punched him. (See Langi, supra, 73 Cal.App.5th at p. 975.) The
superior court summarily denied the defendant’s petition after
concluding he was the actual killer based on language in the
direct appellate opinion suggesting that the defendant threw the
fatal punch. (Id. at p. 975.) The court of appeal reversed. It first
held that the prior opinion, when “[r]ead with the caution
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dictated by [People v.] Lewis [(2021) 11 Cal.5th 952],”5 failed to
“conclusively establish that [the defendant] was convicted as the
actual killer.” (Langi, supra, 73 Cal.App.5th at p. 980.)
The court then considered whether the jury could have
found the defendant guilty of murder as an aider and abettor,
and, if so, whether it could have done so under either the natural
and probable consequences theory or “other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime.” (Langi, at p. 980.) The court noted that
the jury was not instructed on the natural and probable
consequences theory; it therefore examined whether the
instructions given were such that the jury could find him guilty
on a theory under which malice was imputed to him based solely
on his participation in the crime. (Ibid.)
The defendant argued, and the appellate court agreed, that
the instructions permitted the jury to find him guilty of murder
based on his codefendant’s act regardless of his personal
knowledge or disregard of danger to human life. (Langi, supra,
73 Cal.App.5th at p. 981.) Specifically, the court concluded that
the aiding and abetting instruction (CALJIC No. 3.01) and the
second degree murder instruction (CALJIC No. 8.31) as given
permitted the jury “to conclude that, to be guilty as an aider and
abettor of second degree murder, [the defendant] need only have
5 In People v. Lewis, the Supreme Court held that appellate
opinions may be considered in determining whether a prima facie
showing for relief has been made under section 1172.6, but may
not be conclusive. Superior courts are not permitted to engage in
any fact-finding involving the weighing of evidence or the
exercise of discretion at the prima facie stage of review. (See
People v. Lewis, supra, 11 Cal.5th at pp. 971-972; see also Langi,
supra, 73 Cal.App.5th at pp. 979-980.)
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intended to encourage the perpetrator’s intentional act—in this
case, punching [the victim]—whether or not [the defendant]
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.” (Id. at p. 983.) The court emphasized that the
instructions “should have explained that, to be guilty as a direct
aider and abettor of second degree murder, an accomplice must
have acted with the mental state of implied malice.” (Ibid.)
Because they did not, the record of conviction did not
“conclusively negate” the possibility that the defendant was
convicted on an invalid theory, and an evidentiary hearing was
required under section 1172.6. (Langi, at p. 984.)
Langi is obviously inapplicable to the extent appellant
relies upon it to support his contention that he is entitled to an
evidentiary hearing on his attempted murder convictions. It did
not address attempted murder, and the only instruction
appellant identifies as “legally incorrect” or otherwise ambiguous
is the kill zone instruction, which pertains only to attempted
murder. More fundamentally, as explained above, attempted
murder convictions are eligible for relief only when a jury is
instructed on the natural and probable consequences doctrine.
Langi also forms the basis of appellant’s argument
regarding his murder conviction. He contends Langi “is on point”
because “the jury convicted appellant of second-degree murder
but did not find he was the actual killer.” He asserts, quoting
Langi, supra, 73 Cal.App.5th at p. 984, that absent an express
finding by the jury that he was the actual killer, “the record of
conviction does not conclusively negate the possibility that the
jury found [him] guilty of second degree murder by imputing to
him the implied malice of the actual killer, without finding that
13
he personally acted ‘with knowledge of the danger to, and with
conscious disregard for, human life.’” We disagree.
Langi is analogous only to the extent that appellant, like
the defendant there, may have been convicted either as the
actual killer or as an aider and abettor. That fact alone does not
entitle him to relief, however, as “Senate Bill 1437 does not
eliminate direct aiding and abetting liability for murder.”6
(People v. Gentile, supra, 10 Cal.5th at p. 848.) Appellant makes
no further argument explaining how or why it was possible on
the instructions given for the jury to convict him as an aider and
abettor under an imputed malice theory. Nor does he mention
that the instructions given in his case materially differed from
the ones in Langi: appellant’s jury was not instructed with
CALJIC No. 8.31. Instead, appellant’s jury was instructed with a
modified version of CALJIC No. 8.11 (“‘Malice Aforethought’—
Defined”) that omitted optional language defining implied malice.
Appellant’s jury thus was instructed only on express malice,
which the instruction defined as a “manifested . . . intention
unlawfully to kill a human being.” The jury accordingly could not
have convicted appellant under an imputed or implied malice
aiding and abetting theory. The only possibilities presented to
the jury were that appellant was the actual killer or he was an
aider and abettor who harbored express malice. Both theories
6 Senate Bill 1437 was the legislation that “modified the
requirement of malice aforethought for purposes of murder” such
that “personally possessing malice aforethought [became] a
necessary element of murder.” (People v. Gentile (2020) 10
Cal.5th 830, 846.) It also added section 1172.6 to the Penal Code.
(Id. at p. 847.)
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remain valid under current law. The superior court did not err in
denying the petition.
DISPOSITION
The order of the superior court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
DAUM, J.

Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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